RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 3 November 2005
DOCKET NUMBER: AR20050001460
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
Mr. Robert J. McGowan
Analyst
The following members, a quorum, were present:
Mr. Thomas D. Howard, Jr.
Chairperson
Mr. John Infante
Member
Ms. Carmen Duncan
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 discharge be upgraded to General, Under Honorable Conditions.
2. The applicant states he "didn't receive a fair and just judgement (sic)."
3. The applicant provides an American Legion Statement.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests the applicant's discharge be upgraded to Honorable.
2. Counsel states the Army Discharge Review Board (ADRB) already upgraded the applicant's discharge from Under Other Than Honorable Conditions (UOTHC) to General.
3. Counsel provides a statement.
CONSIDERATION OF EVIDENCE:
1. The applicant entered the Regular Army on 11 May 1977 and served continuously until he was separated with a UOTHC discharge on 13 June 1994. His DD Form 214 shows he served for 17 years, 1 month, and 3 days.
2. The applicant was assigned to Fort Carson, Colorado in 1985. He served there until he was assigned to Korea on a 1-year unaccompanied tour in December 1992.
3. In February 1993 while he was stationed in Korea, the applicant's 13-year old biological daughter told school counselors that her father had been sexually molesting her. The school reported the allegations to local civilian law enforcement. Following a joint investigation between civilian law enforcement and US Army Criminal Investigation [Division] Command investigators, the applicant was charged by civilian authorities with sexual assault on a child. The applicant was returned from Korea to Fort Carson.
4. On 13 January 1994, the applicant pleaded guilty in District Court for El Paso County, Colorado to a charge of sexual assault on a child. In return for his guilty plea, the court agreed to defer sentencing for 4 years provided the applicant:
commit no criminal acts; undergo sex offender treatment; have no unsupervised contact with children; and pay all court costs. At the end of the 4-year period, the agreement provided the court "may dismiss [the case] without a formal conviction."
5. On 22 February 1994, the applicant was notified that his commander intended to separate him for misconduct under the provisions of chapter 14, AR (Army Regulation) 635-200. The applicant acknowledged notification, requested counsel, and requested an administrative separation hearing with personal appearance.
6. The administrative separation hearing was held on 9 May 1994. Upon conclusion of the hearing, the board of officers recommended the applicant be separated with a UOTHC discharge. On 23 May 1994, the approving authority accepted the recommendation of the administrative separation board and directed the applicant be reduced to the lowest enlisted grade and separated with a UOTHC discharge.
7. The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade. The ADRB, after considering his case on 2 August 2000, denied his request. The applicant again petitioned the ADRB and requested a personal appearance hearing. After considering his case on 13 September 2004, the ADRB changed the characterization to General, Under Honorable Conditions without changing the reason.
8. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Essentially, it states an honorable discharge is a separation with honor, and is appropriate when the quality of the Soldiers service is so meritorious that any other characterization would be clearly inappropriate. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.
DISCUSSION AND CONCLUSIONS:
1. The applicant admitted guilt in a court of law to the offense of sexual assault on a child. Based upon that admission, his chain of command initiated
separation action against him for misconduct. Following an administrative separation board hearing at which the applicant testified, he was properly separated with a UOTHC discharge by reason of misconduct.
2. An honorable discharge is a separation with honor and is appropriate when the quality of the Soldiers service is so meritorious that any other characterization would be clearly inappropriate. The applicant's admission that he sexually molested his biological daughter makes discharge under honorable conditions "clearly inappropriate."
3. The ADRB saw fit to upgrade the applicant's UOTHC discharge to a General discharge without changing the reason for discharge. The applicant is not deserving of any further upgrade.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__tdh___ __ji____ ___cd___ 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.
Thomas D. Howard, Jr.
______________________
CHAIRPERSON
INDEX
CASE ID
AR20050001460
SUFFIX
RECON
DATE BOARDED
20051103
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19940613
DISCHARGE AUTHORITY
AR 635-200 C14
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
110.0000
2.
3.
4.
5.
6.
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