RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 January 2006
      DOCKET NUMBER:  AR20050006317


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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 Under Other Than Honorable
Conditions (UOTHC) be upgraded to a General Discharge (GD) Under Honorable
Conditions.

2.  The applicant states that his UOTHC discharge was inequitable because
it was based on one isolated incident in over 19 years of service with no
adverse action.

3.  The applicant provides a copy of a Judgement of Conviction, a copy of a
Trust Account Statement, a copy of a DA Form 5862-R (Army Exceptional
Family Member Program Medical Summary), a copy of his DA Form 1506
(Statement of Service-For Computation of Length of Service for Pay
Purposes), and a copy of his DD Form 214 (Certificate of Release or
Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 June 2000, the date of his discharge.  The application
submitted in this case is dated 20 April 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records show he was appointed as a Reserve
commissioned officer in the rank of second lieutenant (2LT/O-1) effective
10 June 1981.  He was promoted to captain (CPT/O-3) effective 1 April 1986.
 He was ordered to active duty (AD) in the US Army Reserve (USAR) on
24 July 1982 and was released from AD on 1 June 1994, in the rank of CPT.

4.  The applicant was ordered to AD in the Active Guard Reserve (AGR)
effective 1 October 1995 for a period of 3 years.

5.  He was promoted to major (MAJ/O-4) with an effective date of 5 April
1996 and a date of rank (DOR) of 2 June 1995.

6.  On 9 August 1999, the applicant received a General Officer Memorandum
of Reprimand (GOMOR) by the Deputy Commander, a Brigadier General,
Headquarters, US Army, 77th Regional Support Command (RSC), for committing
aggravated sexual assault on a juvenile female with Downs Syndrome on
17 March 1999.  The GOMOR was imposed under the provisions of Army
Regulation 600-37 as an administrative measure and not as punishment under
Article 15, under the Uniform Code of Military Justice (UCMJ). The
Commanding General (CG) stated that it was his intent to file the GOMOR in
the applicant's Official Military Personnel File (OMPF).  The GOMOR was
placed in the applicant's OMPF.  He was informed that he had 30 days from
receipt of the GOMOR to submit matters in rebuttals or on his behalf.  The
applicant acknowledged receipt of the GOMOR and was informed to submit any
matters in rebuttal.

7.  On 29 August 1999, the applicant acknowledged receipt of the GOMOR and
stated that he would like to reserve the right to address the matter upon
conclusion of trial and proper adjudication.

8.  The CG, 77th RSC, forwarded the applicant's case to the Commander, Army
Reserve Personnel Command (AR-PERSCOM).

9.  On 15 December 1999, the CG, 77th RSC, prepared a memorandum for the
applicant, Subject:  Initiation of Elimination.  The CG informed the
applicant that he was required to show cause for retention on AD under the
provisions of Army Regulation 600-8-24, paragraph 4-2(b) (5) & (8) because
of misconduct, and moral dereliction.  The CG stated that his actions were
based on the following specific reasons for elimination:  specifically, as
a result of the following incident; acts of personal misconduct (including
but not limited to acts committed while in a drunken or drug intoxicated
state) in that you committed acts of personal misconduct and conduct
unbecoming an officer; inappropriate touching of the breast and belly,
penetration, masturbation, and wrongfully having sexual relations with a 15
year old girl, with Downs Syndrome, which constituted conduct unbecoming of
an officer and gentlemen.

10.  The applicant was informed that he may consult with counsel and that
he may submit a written statement indicating any pertinent facts or any
rebuttal bearing upon the question of his elimination.  He was also
informed that if he were eliminated for substandard performance of duty
only, he would receive an honorable discharge.  However, if he were
eliminated for misconduct, moral or professional dereliction, the least
favorable discharge he could receive was an UOTCH discharge.  Headquarters,
Department of the Army, would determine the final decision.

11.  On 23 February 2000, the applicant submitted a statement in his behalf
and stated that he was sorry for the pain and embarrassment that he had
caused the US Army.  He stated that there was no excuse for what happened,
and that he could only look to God for forgiveness.  He felt that he had
not only betrayed his country, but also his wife and family.  He also
states that many things were going on in his life that led him to this
breaking point.  He also elaborates on his wife’s medical condition and
asked that she be allowed to continued to receive medical treatment for her
condition as long as possible.  He was very concerned that if he received
an UOTHC discharge that she would not be eligible for transitional medical
care.  He concludes by asking that his wife not be punished for his crime.

12.  On 13 March 2000, the CG, 77th RSC approved the findings and
recommendations of the officer board of inquiry and forwarded the
applicant’s case for final action to the Army Reserve Personnel Command (AR-
PERSCOM) with a recommendation for a characterization of UOTHC, under Army
Regulation 600-8-24.

13.  On 29 March 2000, the applicant’s counsel prepared a memorandum for
the General Office Show Cause Authority, 77th RSC, Fort Totten, Subject:
Respondent’s Matters for Submission.  Counsel stated that the applicant
participated in an Officer-Show-Cause Separation Board, at Fort Totten.
The board recommended that the applicant be discharged from the Army with a
characterization of Under Other Than Honorable Conditions.  Counsel
recommended that the applicant be issued a GD due to his wife’s medical
condition.  Counsel stated that the applicant had taken full responsibility
for his actions and admitted his involvement in what happened.  He has been
committed to resolving the matter as quickly as possible for the benefit of
the victim, her family, and the US Army.  In January 2000, the applicant
took responsibility for his actions when he pled guilty to his involvement
in civilian court.  Counsel stated that prior to this incident he had a
solid record of accomplishment.

14.  On 1 June 2000, the applicant’s case appeared before the Army Board of
Review for Eliminations to review the action of the Board of Inquiry, which
recommended elimination of the applicant.  Elimination action in this case
was premised upon misconduct, moral or professional dereliction, as defined
and described in Army Regulation 600-8-24.

15.  On 5 June 2000, the Army Board of Review for Eliminations recommended
that the applicant be eliminated from the US Army for misconduct, moral or
professional dereliction, with an UOTHC discharge, which was approved.

16.  On 22 June 2000, the applicant was discharged under the provisions of
Army Regulation 600-8-24 and with the issuance of an UOTCH Discharge
Certificate.

17.  The applicant provides a copy of a DA Form 5862-R, which shows that
his wife was enrolled in the Army Exceptional Family Member Program.

18.  The applicant provides a copy of his Judgement for Conviction which
shows that he was arrested on 18 March 1999 with a date of original plea on
27 September 1999 and pled not guilty.  He later changed his plea to guilty
on 12 January 2000.  He was originally charged with aggravated sexual
assault on count one, sexual assault on count two and three, and
endangering the welfare of a child on count four.  Counts 1, 3 and 4, of
the indictment were dismissed.  His final charge was, sexual assault.  The
applicant was sentenced to community supervision for life and 9 years in
the custody of the Commission of the Department of Corrections.

19.  The applicant provides a copy of his trust account statement from the
Riverfront State Prison which shows a list of his debts and loans and
obligations summary.

20.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge on 15 April 2004.  The ADRB determined that his
discharge was proper and equitable and denied his request on 11 March 2005.

21.  The applicant provides a copy of his Statement Service, dated 8 June
2005, which shows that he had completed 18 years, 11 months, and 29 days of
total creditable service for pay purposes.

22.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes
policies and procedures governing transfer and discharge of officer
personnel.  Chapter 4 of this regulation prescribes the tasks, rules, and
steps for eliminating officers of the Active Army for substandard
performance of duty, misconduct, moral or professional dereliction, and in
the interests of national security.  Paragraph 4-2 pertains to reasons for
eliminations.  Subparagraph 4-2b covers misconduct, moral or professional
dereliction, or in the interest of national security such as acts of
personal misconduct (including but not limited to acts committed while in a
drunken or drug intoxicated state) and conduct unbecoming an officer.




23.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier's separation specifically allows such
characterization.

24.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

25.  Title 10, U.S. Code, section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the     3 year limit on filing to
the Army Board for Correction of Military Records (ABCMR) should commence
on the date of final action by the ADRB.  In complying with this decision,
the ABCMR has adopted the broader policy of calculating the 3-year time
limit from the date of exhaustion in any case where a lower level
administrative remedy is utilized.

26.  The Manual for Courts-Martial provides the maximum sentences that may
be imposed if convicted at trial by court-martial.  It provides, in
pertinent part, that the maximum sentence that may be imposed for a
conviction by a court-martial, for indecent assault, is a dishonorable
discharge (DD), confinement for 5 years, and forfeiture of all pay and
allowances.  The maximum sentence for indecent acts or liberties with a
child, is a DD, confinement for 7 years, and forfeiture of all pay and
allowances.

DISCUSSION AND CONCLUSIONS:

1.  The date of application to the ABCMR is within three years of the
decision of the ADRB; therefore, the applicant has timely filed.



2.  The applicant's separation under the provisions of Army Regulation 600-
8-24, chapter 4, paragraph 4-2(b) (5) & (8)35-120, was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  The type of discharge
directed and the reasons therefore were appropriate considering all the
facts of the case.

3.  The applicant contends that his UOTHC discharge was inequitable because
it was based on one isolated incident in his 19 years of service with no
adverse action.  The evidence clearly shows that his UOTHC was based on one
isolated incident, aggravated assault on a female with Downs Syndrome,
under the age of 16, which constituted acts of personal misconduct and
conduct unbecoming of an officer and gentlemen.

4.  As a major, senior commissioned officer, in the US Army, the applicant
was held to higher standards and was quite aware of his actions.  He stated
that he was sorry for the pain and embarrassment that he had caused and
that he had taken the responsibility for his actions and involvement in
what happened.  However, the applicant's command felt that there was no
excuse for his actions.  He could have sought assistance for his personal
problems by inquiring of the many social organizations and agencies
available to him.

5.  The evidence shows that the applicant was enrolled in the Exceptional
Family Member Program in 1998 and was aware of his wife's condition prior
to committing his acts of misconduct.  Therefore, there was no excuse for
his actions and misconduct after the fact.

6.  The additional documents provided by the applicant, Judgement for
Conviction and Trust Account Statement, are not sufficient, by themselves,
as a basis to upgrade his UOTHC to a GD.

7.  The applicant has provided insufficient evidence to show that his
discharge was unjust.  He also has not provided evidence sufficient to
mitigate the character of his discharge.

8.  It is noted that the maximum sentence that could have been imposed by
the applicant if convicted at trial by court-martial was a DD, confinement
for 5 years, and forfeiture of all pay and allowances for indecent assault
and a DD, confinement for 7 years, and forfeiture of all pay and allowanced
for indecent acts or liberties with a child under the age of 16.




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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RJF___  _WDP___  _TMR___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




                                  ____William D. Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006317                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060105                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |20000622                                |
|DISCHARGE AUTHORITY     |AR 6008-24                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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