RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 JULY 2005
      DOCKET NUMBER:  AR20040007732


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Gale J. Thomas                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Shirley Powell                |     |Member               |
|     |Mr. Stanley Kelley                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his dishonorable discharge be upgraded.

2.  The applicant states he believes that the discharge was too harsh given
that he turned himself in to Criminal Investigation Division (CID) and self-
enrolled voluntarily in the Alcohol and Drug Abuse Prevention Control
Program (ADAPCP).  He states, in effect, that he was attempting to get help
with his drinking and never intended to get away with anything.  He states
he is only looking for a second chance to start over.  He states that he
put a lot of years into the Army and knows that his actions were wrong and
has done his best to repair the damage done.

3.  The applicant states that he had a lot of things going on at the time
and “basically turned to the wrong people for help.”  He states he realizes
he should have gone for drug/alcohol and marriage counseling, but believed
as a noncommissioned officer “it would get around and [his] career would
have been ruined.”  He states as such, he tried to deal with everything by
himself.  He states that he “never done anything of this nature before” and
“never thought about this stuff since.”  He states that he has quit
drinking.

4.  In a February 2003 statement to the Army Discharge Review Board, the
applicant indicated that in February 1999, during his second tour of duty
in Korea, he “decided to clean [himself] up” and not get into the same
pattern of “drinking, fighting and going to all the local bars” which he
had done during his initial tour of duty in Korea in December 1995.  He
states he began attending Alcohol Anonymous (AA) meetings and going to
church and started counseling sessions.  He states that he finally told the
chaplain “what was going on” and that he “had been under investigation” but
had “been informed by [his] chain of command that the case had been closed
due to lack of evidence.”

5.  He states in September 1999 he “decided to turn [himself] in and try to
get some help” and believed that the Army system would help him.  He states
that he admitted he had “made a devastating mistake due to a lot of
emotional stress” he was having during his marriage and that he thought he
could handle it and change things himself, but he found out he was wrong.

6.  He states he knows what he did was wrong but is just looking for some
leniency and some understanding.


7.  The applicant provides documents from his service personnel records,
including performance evaluation reports, copies of awards and decorations,
and evidence of completion of various educational endeavors and training
courses.  He also submits several letters which support the upgrading of
his discharge, and note that he is a hard worker, has a lot of good
qualities, and is a contributing member of society.

8.  He also submits copies of documents which were utilized as part of his
clemency and parole board hearings as well as several letters from 2002
supporting the upgrading of the applicant’s discharge so he could join the
National Guard.

CONSIDERATION OF EVIDENCE:

1.  Evidence available to the Board indicates that the applicant entered
active duty on 14 September 1987.  He was released from active duty on 13
September 1991, at the completion of his 4-year enlistment contract
obligation.  He then enlisted in the Army National Guard.

2.  On 25 March 1993 the applicant reenlisted in the Regular Army and
returned to active duty.  He subsequently executed several reenlistment
contracts.

3.  On 10 May 2000, at Fort Hood, Texas, he was convicted by a general
court-martial of “indecent acts with another.”  The charges stemmed from
indecent acts with two different children under the age of 16.  The first
indecent acts occurred between 1 May 1996 and 31 August 1996 with his
daughter, who was 9 years old at the time.  It is unclear if the child was
his biological daughter or not.  The second set of indecent acts occurred
between 1 and 30 September 1998 with another female child whose name was
not the same as the applicant’s.

4.  His sentence, imposed by a judge alone, included reduction to pay grade
E-1, confinement for 4 years, and to be discharged from the Army with a
dishonorable discharge.  The sentence was affirmed in June 2002 and on 19
August 2002 the dishonorable discharge was executed.

5.  Between February 1996 and January 1997, the applicant’s performance
evaluation report indicates that he was assigned to an infantry unit at
Fort Hood as a team leader.  His performance evaluation report indicated
that he was a successful Soldier whose senior rater indicated he was the
“best example of a proficient Team Leader in the Platoon” and that his
“performance has remarkably improved with time.”

6.  Between February 1998 and September 1998, his performance evaluation
report indicates he was still assigned to the same infantry unit at Fort
Hood, but now as a Bradley Infantry Fighting Vehicle Gunner.  His
performance evaluation report was even more complimentary than the report
rendered in January 1997 and his senior rater placed him in the top block
for both overall performance and potential.

7.  On 1 October 1998 he was promoted to pay grade E-6.  His record
confirms that he completed a variety of military training courses and that
he had been awarded two Army Achievement Medals (one in 1995 and a second
in 1996), as well as several Army Good Conduct Medals.

8.  A letter included with his application to the Board confirms that he
was “self-referred” to the Camp Casey Counseling Center for evaluation and
treatment on 17 September 1999 and that he had a strong desire to stop
drinking.  The statement notes that his “incidents and behavior were in
part related to his alcohol dependence.”  The statement does not, however,
define what the “incidents and behavior” were.

9.  The documents submitted in support of his request also show that he
completed several behavior and family advocacy programs while in
confinement at Fort Sill, Oklahoma following his court-martial conviction.

10.  The letters submitted in support of the applicant’s request to upgrade
his discharge note that the applicant is a hard worker.  Most of the
supporters had known the applicant for a relatively short period prior to
providing their statements.  None of the statements speak directly to the
basis for the applicant’s dishonorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has submitted neither probative evidence nor a convincing
argument in support of his request.  His contention that his drinking
somehow excuses his behavior is without merit.

2.  The evidence shows that in spite of the applicant’s contention that his
problems were alcohol related, he was able to continue to perform his
military duties in such a manner that he was promoted in 1998 and
consistently received complementary performance evaluation reports.  The
applicant’s record even



shows that during the period he was committing his crimes that he was
performing his duties so successfully that he received a extremely
complimentary comments from his senior rater between February 1996 and
January 1997 and was rated “among the best” Soldier in overall performance
and potential by his senior rater in September 1998.

3.  The applicant is to be commended for his ability to overcome his
addiction problems, however, it does not outweigh the seriousness of his
conduct while in the military and does not, in this case, provide an
adequate basis upon which the Board would grant relief as a matter of
equity.

4.  The applicant’s dishonorable discharge was clearly appropriate
considering the misconduct, which formed the basis for his court-martial.
There is no evidence of any error or injustice, and the fact that the
applicant may have had no other incidents of misconduct or that he had
served honorably for several years does not warrant the relief requested.
The fact that the applicant received personal decorations, completed
numerous training courses, and is now a hard worker and contributing member
of society is not sufficiently mitigating to justify upgrading his
discharge as a matter of equity, or as he asks, as a matter of
understanding and leniency.

5.  The applicant's discharge was accomplished in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.

6.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JS  ___  ___SP __  ___SK __  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.


                                  _______John Slone________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040007732                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050712                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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