RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 November 2007
	DOCKET NUMBER:  AR20070009360 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Barbara J. Ellis

Chairperson

Mr. Jose A. Martinez

Member

Mr. Chester A. Damian

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 an upgrade of his discharge.

2.  The applicant states that he was forced to accept an Other Than Honorable Discharge or face federal charges that had been raised from a misdemeanor to a statutory charge [sic].  He further adds that the charges were fraudulent and should never have been pursued and that there was not a shred of evidence or real proof other than that stated by a child.  He also states that his record was spotless and that he had an excellent record in all prior periods and up until this accusation.  He adds that there were many cases where accusations by minors were proven to have been false for varied reasons.  He concludes that a new, personal hearing is in order.

3.  In his self-authored statement, the applicant described what he called the facts surrounding his discharge from the Army.  He stated that while he was the Chief of Surgery at Blanchfield Army Hospital, Fort Campbell, Kentucky, he was asked by a cleaning lady to see and/or treat her eleven-year old daughter's ear canal on a follow-up visit since he had previously treated the girl.  Since it was a surgery day, he had no personnel in the clinic, so he escorted the girl to the Ears, Nose, and Throat (ENT) clinic, treated her, and returned her to her mother.  The stairs were used for expediency and no one saw them.  Later that day, the girl accused him of touching her.  He was questioned by his Commander and the Criminal Investigation Division (CID) and was ultimately placed under house arrest.  Before a General Court-Martial convened, it was discovered that he had been under house arrest in excess of the legal time, so the case was dismissed.  However, he was later charged in a federal court and he eventually served 14 months of an 18-month sentence for rape.  After his conviction, he was discharged from the Army with a less than honorable discharge. 

4.  The applicant provided the following additional documentary evidence in support of his application:

	a.  Department of Veterans Affairs (DVA) Rating Decision, dated 14 March 2007.

	b.  An undated, self-authored statement listing the "facts surrounding his exodus from the Army."

	c.  The applicant's DD Forms 214 (Certificate of Release or Discharge from Active Duty).

	d.  The applicant's statement of service, dated 21 August 1990.

	e.  The applicant's DA Form 66 (Officer Qualification Record).

	f.  DA Form 2-1 (Personnel Qualification Record).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's discharge. 

2.  Counsel states that the applicant, a veteran of Vietnam, who was wounded three time in combat and was decorated twice for valor, is a great American who has everything to lose by throwing away his career being so near retirement.  

3.  Counsel presumably assisted the applicant in providing the above documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show that he was commissioned as a 2nd lieutenant in the U.S. Army Reserve (USAR) on 12 June 1957 as an Infantry Officer.  He was promoted to 1st lieutenant on 7 July 1958, captain on 14 June 1965, major on 23 June 1968, lieutenant colonel on 13 December 1977, and colonel on 13 December 1983. 

3.  The applicant's records also show that, after attending the Infantry Officer Basic Course, he was assigned to Fort Ord, California, for active duty during the period 29 November 1957 through 28 November 1959, before he reverted back to USAR status on 29 November 1959.  He was assigned as a Medical Student 
officer at the School of Medicine, University of Indiana, on 1 July 1964; Rotating Intern, at Fort Sam Houston, Texas, on 1 July 1965; General Medical Officer, Fort Sam Houston, Texas, on 1 July 1966; and Aviation Medical Student at Fort McPherson, Georgia, on 20 September 1966. 

4.  The applicant's records also show that he reverted to USAR status during the period 4 October 1971 through 1 September 1978.  On 2 July 1979, he was assigned as a Staff Otolaryngology at Madigan Army Medical Center, Fort Lewis, Washington, and on 5 May 1983, he became the Chief of Otolaryngology, at Fort Campbell, Kentucky.

5.  The applicant's records show that he served in the Republic of Vietnam during the period 10 May 1967 through 19 May 1968.

6.  The applicant's records show that he was awarded the National Defense Service Medal (1st Oak Leaf Cluster), the Vietnam Service Medal with four bronze service stars, the Air Medal [1st through 6th (1 with "V" Device)], the Armed Forces Reserve Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Purple Heart (2nd Oak Leaf Cluster); the Bronze Star Medal with 1st Oak Leaf Cluster with "V" Device, the Meritorious Service Medal, the Army Commendation Medal, the Army Achievement Medal, the Valorous Unit Award, the Army Service Ribbon, the Meritorious Unit Commendation, the Crewmember Aviation Badge, and the Senior Flight Surgeon Badge.

7.  On 8 October 1985, court-martial charges were preferred against the applicant for:

	a.  on various occasions between 1 August 1984 and 28 June 1985, wrongfully maltreating a subordinate enlisted Soldier by sexually harassing her by assault and deliberate and repeated offensive comments and gestures of a sexual nature;

	b.  on various occasions between 1 August 1984 and 28 June 1985, wrongfully maltreating a subordinate officer by sexually harassing her by assault and deliberate and repeated offensive comments and gestures of a sexual nature;

	c.  on various occasions between 1 August 1984 and 28 June 1985, wrongfully maltreating a second subordinate officer by sexually harassing her by assault and deliberate and repeated offensive comments and gestures of a sexual nature;

	d.  on or about 28 May 1985, committing indecent sexual acts upon the body of a female under 16 years of age, not his wife;

	e.  on or about 31 May 1985, committing indecent sexual acts upon the body of a female under 16 years of age, not his wife;

	f.  on or about 25 June 1985 through on or about 27 June 1985, committing indecent sexual acts upon the body of a female under 16 years of age, not his wife; and

	g.  on an unknown date between 1 September 1984 and 1 December 1984, committing an indecent assault upon a subordinate officer.

8.  On 10 February 1986, the applicant was arraigned before a General Court-Martial which convened at Fort Campbell, Kentucky, for three specifications of conduct unbecoming an officer and a gentleman in the nature of sexual harassment between 1 August 1984 and 28 June 1985; two specifications of committing an indecent act upon a female under 16 years of age on or about 28 May 1985 to on or about 31 May 1985; and two specifications of indecent assault upon a person not his wife, from 25 June 1985 to about 27 June 1985 and on an unknown date between 1 September 1984 and 1 December 1984.

9.  On 18 February 1986, the applicant was reprimanded by the Commander, 101st Airborne Division, Fort Campbell, Kentucky, for unprofessional conduct with his subordinates at Blanchfield Army Community Hospital, Fort Campbell, Kentucky.  Specifically, he was reprimanded for repeated offensive comments of a sexual nature, to include propositions for sexual favors.  In a memorandum dated 24 February 1986, the applicant rebutted the allegations for which he was reprimanded as largely unsubstantiated and unproven.

10.  On 29 July 1986, a recommendation for the applicant's elimination from the Army was initiated by the Director of the Officer Personnel Management Directorate, Military Personnel Center (now Human Resources Command), Alexandria, Virginia, because of substandard performance of duty and misconduct, moral or professional dereliction under the provisions of paragraphs 5-11 and 5-12 of Army Regulation 635-100 (Personnel Separations-Officer Personnel) 

11.  On 30 July 1987, a Department of the Army Elimination Selection Board convened and recommended the applicant be required to show cause for retention in the Army.  

12.  On 13 January 1988, a Board of Inquiry, appointed by the Commander, Health Services Command, convened at Fort Gordon, Georgia, and recommended the applicant be eliminated from the Army with an under other than honorable conditions discharge for substandard performance of duty and misconduct, moral or professional dereliction under the provisions of paragraphs 5-11 and 5-12 of Army Regulation 635-100.

13.  On 25 January 1988, the applicant was notified by memorandum that pursuant to paragraph 5-34a of Army Regulation 635-100, a board of inquiry would convene on 17 February 1988 to determine if the applicant should be retained in the Army.  On 26 January 1988, by memorandum, the Commander, Eisenhower Army Medical Center, Fort Gordon, Georgia, referred the applicant for a mental evaluation.  

14.  On 10 May 1988, the Fort Gordon, Georgia, Staff Judge Advocate reviewed the applicant's Show Cause Board Record and Appeal and recommended approval of the board proceedings and that they be forwarded to the Department of the Army in accordance with paragraph 5-22 of Army Regulation 635-100.

15.  On 15 August 1988, the Army Board of Review for Elimination convened in Falls Church, Virginia, to review the action of the Board of Inquiry which recommended the applicant's elimination.  The Army Board of Review listed the evidence upon which its findings were based as the applicant's defective attitude and failure to conform to prescribed standards of military deportment; acts of misconduct and conduct unbecoming of an officer; and conduct or actions resulting in the withdrawal of clinical privileges.  The Board found that the applicant should be eliminated from the service for his substandard performance of duty and misconduct, moral and personal dereliction.  The Board also recommended the applicant's be eliminated from the service and furnished an under other than honorable conditions discharge.

16.  On 17 August 1988, the Deputy Assistant Secretary of the Army (Review Boards and Equal Employment Opportunity Compliance and Complaints Review) approved the recommendations of the Army Board of Review for elimination of the applicant from the Army with an under other than honorable conditions discharge.

17.  The applicant was discharged on 7 September 1988.  The DD Form 214 he was issued at the time of his separation shows he was discharged under chapter 10 of Army Regulation 635-120 (Personnel Separations; Officer Resignations 


and Discharges), for misconduct, moral or professional dereliction, with an under 
other than honorable conditions discharge.  This form also shows he had completed 16 years, 3 months, and 12 days of creditable service and 27 days of lost time.

18.  The DVA Decision Rating shows that the applicant has filed a disability claim and that the DVA made a decision on 14 March 2007 regarding his disability.

19.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

20.  Army Regulation 635-100 provides the authority for the separation of commissioned and warrant officers from the Active Army.  Paragraph 3-49 of this regulation specifically provides for the involuntary release of officers from active duty, based on the recommendation of the Department of the Army Active Duty Board (DAADB), for misconduct, moral or professional dereliction, and/or when their degree of efficiency and manner of performance or the needs of the service require such action.

21.  Chapter 5 of Army Regulation 635-100 prescribes the means and procedures to eliminate officers from the Army for substandard performance of duty, misconduct, moral or professional dereliction or in the interest of national security.  Paragraph 5-34 of this regulation states that the purpose of a board of inquiry is to afford the respondent a fair and impartial hearing to determine whether he or she should be retained in the Army.  It is the responsibility of the Government to establish by a preponderance of evidence that the officer has failed to maintain the standard desired for his or her grade and branch or that he or she has conducted themselves in a manner prejudicial to national security.  In the absence of such a showing by the Government, the board must find for retention.  The respondent, however, is not relieved of the responsibility to come forward with evidence to refute the Government's position.

22.  Paragraph 5-11 of Army Regulation 635-100 identifies the conditions to eliminate officers from the Army for substandard performance of duty, misconduct, moral or professional dereliction or in the interest of national security.  It states that, while not all inclusive, existence of one of the following or similar conditions, unless successfully rebutted, authorizes elimination of an officer due to misconduct, moral or professional dereliction or in the interest of national security:  Acts of personal misconduct (including, but not limited to, acts 

committed while in a drunken or drug intoxicated state), conduct unbecoming an officer, conduct or actions resulting in the loss of a professional status, such as withdrawal, suspension of abandonment of professional license, endorsement, or certification which is directly or indirectly connected with the performance of one's military duties and necessary for the performance, including withdrawal of clinical privileges for Army Medical Department (AMEDD) officers.

23.  Army Regulation 635-120 implements the statutory provisions of Title 10, United States Code governing officer separations and provides policies and procedures for separating officer from active duty.  Chapter 5 of this regulation provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial, the officer is under suspended sentence of dismissal, or the officer elects to tender a resignation because of reasons outlined in Army Regulation 635-100, paragraph 5-11a(7) (misconduct or moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100.  The regulation provides that a resignation for the good of the service, when approved at Headquarters Department of the Army, is normally accepted as being under other than honorable conditions.

24.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity that is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  
Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  The ABCMR may, in its discretion, hold or request additional evidence or opinions when it is deemed necessary, and the Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant’s awards and decorations as well as his honorable service in the Republic of Vietnam are noted.  The applicant's alleged spotless and excellent record was also noted.  However, this factor is not sufficiently mitigating to warrant an upgrade of his discharge.  The applicant's misconduct far outweighs his combat service and when taken together with the other misconducts of record, his requested relief is not warranted.

3.  The evidence of record shows that the applicant was charged with several specifications of sexual harassment, sexual assault, and indecent sexual acts.  The appropriate authorities recommended the applicant's elimination with an under other than honorable conditions discharge.  The Army Review Board recommended that the applicant be eliminated with an under other than honorable conditions discharge.  The Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Review Board that elimination be accepted with an under other than honorable conditions discharge.  

4.  There is no evidence in the applicant's record that he was forced to accept an "other than honorable discharge" or face federal charges that had been raised from a misdemeanor to a statutory charge.  There is no evidence that the charges were formulated.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  In view of the foregoing evidence, the applicant is not entitled to relief.  Further, there is insufficient evidence to support a conclusion that a formal hearing is necessary to serve the interest of justice in this case.

6.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record the applicant must, 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

__bje___  __jam___  __cad___  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.




							Barbara J. Ellis
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070009360
SUFFIX

RECON

DATE BOARDED
20071108
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19880907
DISCHARGE AUTHORITY
AR 635-120
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.