IN THE CASE OF:	  

		BOARD DATE:	       18 AUGUST 2009

		DOCKET NUMBER:  AR20080012492 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests upgrade of the applicant's under other than honorable conditions discharge to an honorable discharge and removal from his Official Military Personnel File (OMPF) of any and all adverse material related to the unfounded charges against him.

2.  Counsel states the applicant provided outstanding professional service throughout his military career.  His career was prematurely ended following an administrative separation board hearing “wrought with evidentiary and procedural deficiencies that violated [the applicant’s] due process rights.”  Counsel specifically argues:

	a.  the administrative separation board of officers (board) based its decision that the applicant committed a serious offense, to wit:  indecently assaulting a child under the age of 16, on the dubious claim of the victim.  After making allegations against the applicant, the alleged victim recanted, stating she lied;

	b.  the board heard testimony from other sources – the alleged victim’s high school counselor, a Texas Child Protective Services (CPS) case worker, U.S. Army Criminal Investigation Command (USACIDC, also known as CID) investigators – which was all based on the victim’s dubious allegations;

	c.  the board ignored or gave little weight to the fact there was no forensic evidence linking the applicant to the alleged offense.  The USACIDC Criminal Investigation Laboratory could not identify any DNA (deoxyribonucleic acid) material belonging to the applicant on any clothing owned by the victim or on furniture where the victim alleged various acts took place;

	d.  procedurally, the board reviewed a prior allegation by the same victim dating from 2001, which was investigated and determined to be unfounded by the Georgia Department of CPS.  This information tainted the board’s deliberation in the 2005 case.  Further, the legal advisor who provided guidance to the Government during the investigative phase of the 2005 case also served as the board recorder during the applicant’s administrative separation board;

	e.  the audio tape the alleged victim claimed to have recorded of an inappropriate conversation between the applicant and the alleged victim was never authenticated;

	f.  the Georgia CPS report and his acquittal of misconduct with trainees when he was a drill sergeant in 1988 were improperly placed before the board without prior approval;

	g.  no determination was made and the board heard evidence of a prior unsubstantiated claim, which tainted the effects of the board's decision; and 

	h.  the legal advisor to the board also operated as an advisor to the Government during the investigation of charges against the applicant.

3.  Counsel states that the applicant was stationed at El Paso, Texas where he lived with his girlfriend and her then 15 year old daughter, and his son.  In February 2005, the alleged victim made allegations to her high school counselor alleging the applicant had committed an act of indecent assault on her.

4.  According to the high school counselor, both the alleged victim and the applicant's son came to her office and claimed the applicant had approached the alleged victim naked and made inappropriate sexual comments.  The alleged victim indicated that she had tape-recorded the conversation by placing a recording device under her blanket.  

5.  The high school counselor contacted the Texas CPS who looked into the allegations.  The applicant's girlfriend and the alleged victim moved out of the home and began residing at a hotel where CPS made several visits over the course of three months.  The alleged victim recanted her story verbally and in writing and later the CPS' case was closed.
6.  Counsel states that the alleged victim made a similar claim against the applicant in 2002 while the family were residing in Georgia.  "The claims, however, were found by the Department of Family Children Services in Georgia to be unsubstantiated and that case was closed."  There was no evidence or insufficient evidence to substantiate the occurrence of child maltreatment. 

7.  As a result of allegations against the applicant, the CID initiated an investigation into his alleged misconduct.  The alleged victim gave an interview to investigators in which she provided an audiotape of the incident she reported to CPS.  According to investigators, she further indicated that there had been other incidents in which the applicant had "fondled her, touched her breast, and would lie on top of her."

8.  Shortly after her interview with the CID, the alleged victim wrote a letter admitting the story was false and a few months later wrote another letter indicating that she had coerced the conversation on the tape to purposely sound like the applicant was asking her to do things, but that was not the case.  The applicant's son who initially supported the alleged victim's statement also admitted the story he told was false.  Despite these admissions and evidentiary deficiencies, the CID continued its investigation.  

9.  The Office of The Adjutant General informed the applicant's State Representative that he was flagged until the investigation was completed and the Commanding General would determine whether Uniform Code of Military Justice (UCMJ) action would be warranted.  In January 2006, an administrative separation board convened to determine whether the applicant should be retained or separated from the service.

10.  Counsel states that during the course of the board proceedings, the applicant, through counsel, attempted to expose procedural and substantive errors that had occurred during the course of the proceedings:

	a.  the board was served a copy of evidentiary material to review prior to the board's convening that predated the terms of his current enlistment, without specific Department of the Army approval (i.e. CPS documents from Georgia relating to a prior similar allegation the alleged victim made and a court-martial acquittal of misconduct with trainees when he was a drill sergeant in 1988).

	b.  although these allegations were ultimately found to be unsubstantiated by CPS, the applicant's counsel argued that they still remained in violation of regulations and had a prejudicial effect on the proceedings; and 

	c.  the board ultimately rejected the argument and found the applicant had committed a serious offense and recommended he be separated from the service with an under other than honorable conditions discharge. 

11.  Counsel states the applicant was denied a request for retention or retirement.  Counsel further stated that during the board proceedings, numerous favorable character letters were provided from those who had worked with the applicant over his long career.  One of the letters from the applicant's command made several substantial allegations regarding the board's evidentiary considerations and procedural actions:

	a.  the audiotape recording had not been professionally authenticated;

	b.  evidence had been submitted to the board only one day before it convened;

	c.  the government Recorder maintained an active role in the CID investigation; and 

	d.  the legal advisor to the board was also the advisor to the government during the investigation.

12.  Despite these arguments, the applicant's command chose to initiate separation proceedings pursuant to Army Regulation 635-200 (Personnel Separations – Active Duty Administrative Enlisted Separations), chapter 14, by reason of misconduct – commission of a serious offense.  The applicant was reduced to private (PV1)/E-1 with a discharge characterized as under other than honorable conditions, which led to a substantial reduction in retirement benefits.

13.  The applicant submitted a request to the Army Discharge Review Board (ADRB) to update his discharge.  Upon reviewing his file, an analyst recommended that the applicant's service characterization be upgraded to fully honorable and his grade be restored to E-9.  However, the ADRB elected to make no change in the applicant's discharge.

14.  Counsel provides Exhibits 1 through 32 as identified in his "Memorandum in Support of Application for Correction of Records" and ADRB Case Number 20060012200, dated 20 September 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 June 1981.  He initially trained as a Signal Support Systems Specialist.  He had completed numerous military courses, to include the Advanced Noncommissioned Officer Course (ANCOC) and Drill Sergeant School, and he had been awarded three awards of the Meritorious Service Medal, three awards of the Army Commendation Medal, four awards of the Army Achievement Medal, and seven awards of the Army Good Conduct Medal, among other service medals, ribbons, and badges.

2.  On 9 July 2004, he was assigned to Fort Bliss, Texas, to attend the U.S. Army Sergeants Major Course.  He was promoted to the rank/grade of sergeant major (SGM)/E-9 on 1 October 2004.

3.  On an unknown date, the alleged victim and the applicant's son informed her high school counselor that the applicant had tried to molest her.  The applicant's son stated that he witnessed his father inappropriately touch the alleged victim.  The alleged victim further indicated that the incidents had been occurring since she was in the sixth grade.  However, she had an audio recording of the latest incident.  The counselor notified the Texas CPS about the allegations and the audiotape.  The Texas CPS assigned a caseworker to assist the alleged victim and her mother.  A CPS caseworker was also assigned the case to monitor the mother and daughter monthly.

4.  The El Paso Police Department notified the Military Police office at Fort Bliss of the allegation made by the alleged victim that the applicant has been sexually assaulting her.  On 16 February 2005, the CID at Fort Bliss initiated an investigation.

5.  The alleged victim's mother permitted her daughter to be interviewed by CID agents.  The alleged victim stated that the applicant had been sexually assaulting her since the sixth grade.  She further indicated that incidents occurred on numerous occasions and normally at least once a week.  She related that during the latest incident, she tape-recorded the conversation with the applicant during the incident.

6.  The mother of the alleged victim was interviewed and indicated that her daughter made similar allegations towards the applicant while they lived in Georgia, but the allegations were unsubstantiated.  The mother was in disbelief that her daughter would be making up the allegations.  The mother listened to the audiotape recording her daughter had provided and related that the voices were that of her daughter and the applicant.  She further indicated since living in
El Paso her daughter had never reported anything to her, and she was unaware the applicant was touching her daughter.


7.  The audiotape revealed the applicant had a conversation with the alleged victim wherein he told her words to the effect "remove your clothing so I can touch your breast."  On 18 February 2005, the applicant was advised of his rights, which he invoked.

8.  On 13 February 2005, the applicant's son wrote a statement denying he saw his father do anything wrong.  He made an honest mistake in telling a lie.  He thought he was helping someone in danger, but he was wrong.  

9.  On 20 February and 10 June 2005, the alleged victim wrote statements that recanted the allegations she made against the applicant to her high school counselor and the CID investigators.  She stated the allegations were not true and that the audiotape conversation was just about what men would tell a woman to do for money, such as prostitutes and hookers, and that she coaxed him into saying certain things on the tape.

10.  In May 2005, the applicant and the alleged victim's mother married.

11.  On 12 August 2005, the Texas CPS closed the case on the mother for child neglect.  The caseworker noted that the mother and the alleged victim were moving back to Georgia.  The caseworker informed the mother that the case would be closed in El Paso; however, should any reports be made to the department, then an investigation would be initiated.  The mother informed the caseworker that she would be protective of her daughter.

12.  On 28 October 2005, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct - commission of a serious offense.  The reason cited by the commander was the applicant, on divers occasions between 1999 and 2005, indecently assaulted a child under the age of 16.  The applicant was advised of his rights and the commander recommended the applicant receive an under other than honorable conditions discharge.

13.  The applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised that he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant requested counsel and requested to be heard by a board of officers.


14.  On 9 January 2006, an administrative separation board convened to determine whether the applicant should be separated from the Army.  He was present for the proceedings and was represented by counsel.  During the opening session, counsel for the applicant issued a challenge for cause to the board members, stating that they were not impartial because they had been served a copy of material/evidence to read prior to the board convening which contained documents that predated the applicant's current term of enlistment.  Counsel argued that:
	
   a.  in order to use the information, it had to be prior approved by the Department of the Army in accordance with Army Regulation 635-200;

	b.  the board should be delayed in order to get approval;

	c.  the board was tainted by receiving the evidence; and 

	d.  the board should be replaced with completely new members.

15.  After seeking legal counsel, the board president found that the challenge of the evidence would be heard when the evidence was brought forward.  The president also found that the members were not tainted by having received a packet of evidence prior to the proceeding.  The board president noted that he would hear the evidence at the proper time and then determine whether or not he believed it relevant to the proceedings.

16.  The board president denied the request for a delay.  The president continued that counsel's interpretation of Army Regulation 635-200 was incorrect and his request to delay the proceedings to talk to the Department of the Army was denied.

17.  The president further noted that because the applicant was alleged to have committed serious misconduct over the period of time from 1999 to 2005, and if the recorder can link the misconduct as a pattern, then it was proper to reach back to a prior enlistment term and consider that misconduct as well.  

18.  Both the alleged victim and the applicant's son were unavailable for the hearing.  

19.  Counsel for the applicant objected that:

	a.  the written testimony of the alleged victim was hearsay without the presence of the witness;

	b.  the written testimony of the applicant's son was hearsay; and 

	c.  the tape-recording of the alleged victim and the applicant was not authenticated.  

20.  All members of the board allowed the written testimonies and audiotape recording as evidence.

21.  The board heard testimony from witnesses for the recorder and testimony from noncommissioned officers (NCOs) who testified to the applicant's good character, integrity, and outstanding performance of duty.  

22.  The alleged victim's high school counselor was deposed and testified that she was the first person they [alleged victim and son] reported the sexual assault to.  The counselor stated the alleged victim told her that her [now stepfather] tried to molest her since her sixth grade year and she had recorded the most recent incident onto a tape recorder.  The counselor told her that they could let the CPS listen to the tape.  The counselor further stated the applicant's son stated at first he did not believe her until he saw his father inappropriately touch her and that he recorded the date on his cell phone.

23.  The incident occurred when the alleged victim and the applicant were home alone, when he approached her while she was on the couch watching TV.  The applicant kept asking her if he could suck her breast.  She kept pushing him off saying "not right now."  The counselor further stated that the alleged victim told her that she told her mother for several years but her mother did not believe her. The alleged victim told the counselor that she had reported an earlier incident with the Georgia police, and she was told if she made those types of allegations again, she would be placed in a detention center.

24.  The counselor testified that she notified CPS and they kept the alleged victim the whole day.  The alleged victim approached her [the counselor] a few days after the incident happened and wanted to recant her statement.  She asked the counselor to say that she was lying.  She told the alleged victim she would not say that she was lying.  The counselor further stated that the alleged victim never told her that she had tricked the applicant into doing this and she never said she was lying; she just wanted the counselor to say that the alleged victim was lying.

25.  CID investigator #1 testified that he interviewed the alleged victim.  She told him that the abuse started in Georgia (since 1999) and when they moved here, the abuse continued.  She stated the CPS in Georgia told her she had no proof.  The allegations were less than rape; rather they were allegations of indecent 
assault.  Investigator #1 stated that the alleged victim indicated she made the tape so that she could finally have proof that these things were actually happening to her.

26.  CID investigator #1 testified that the alleged victim stated that she was lying on the couch and had the recorder under the blanket and that she would have the recorder by her whenever she was alone with the applicant.

27.  CID investigator #1 further testified that the alleged victim and her mother came back to his office after a long weekend.  They provided a note to him written by the alleged victim.  The statement recanted what she previously told his office.  He asked her to explain the tape recording if what she was now saying was true - that she had made up all the allegations.  She did not say anything about the tape, except that she tried to trick the applicant.

28.  CID investigator #1 testified that the alleged victim further stated that she had tried to trick the applicant by asking what do prostitutes do for money and that she had taped his response to that question.  The alleged victim further stated that she and her mother had to move into a hotel and that her mother was very sad.  She continued that the applicant’s son had moved home with his biological mother, in Georgia.  Investigator #1 asked her about the allegations she made in Georgia.  She stated that what happened in Georgia was still true.  Then she hesitated, and said, “No, nothing is true.”

29.  CID investigator #2 testified that he interviewed the applicant’s son.  The son was very straight forward and kept eye contact at all times.  He told him about a few incidents that involved the alleged victim and the applicant.  The son stated that one night while he was in his room he saw the applicant slap the alleged victim on her buttocks.  He thought it was improper; he had never seen his father do this before.  The alleged victim had told him in the past that his father had done these things to her, but he never believed her until this particular time that he saw his father slap her on the buttocks.

30.  CID investigator #2 testified that the son also stated he witnessed another incident, while he was in his room and the applicant was eating at the dining room table, the alleged victim was dancing.  After the applicant finished eating, he moved to the couch and started watching the alleged victim.  His father then put his hands in his pants and started to rub himself.  He then asked the alleged victim if his father was being inappropriate with her and she confirmed that the sexual abuse had been happening for some time.  He stated after he saw his father masturbating while watching the alleged victim, he got so upset that he left the house for 45 minutes because he could not face his father.

31.  CID investigator #2 testified that the applicant's son stated that he called his mother and explained to her what he had seen and his mother recommended they record what was going on.  Investigator #2 spoke to the son’s mother and she confirmed some of the allegations that her son had told him.  She stated that her son had previously told her about the allegations.  She stated that she gave her son some advice and not to worry about what would happen to the applicant and to stick by the alleged victim.

32.  At the conclusion of the board, the applicant made a statement in his own behalf.  He stated, "I hope that this statement gives you a better understanding of me.  I hope that you will allow me to stay in the Army and continue serving.  This all has been very stressful for me and my family.  I am looking forward to getting back into the field and continue serving.  I was not allowed to walk the stage at graduation from the Academy, but this has not deterred me.  I continue to support the Academy and Fort Bliss community.  I also continue to stay physically fit.  I consider myself loyal and honest and the allegations against me are false.  On advice of my counsel, I want you to be aware that this past year has been extremely stressful.  I don't believe I have been afforded due process because I have not been afforded a trial.  I remind you that even after these proceedings today, the Government could come after me in the form of a trial.  Normally, the court should come first and then the board.  In this case, in my case, they have done it in reverse order.  In the past 12 months, my wife and I have continued to maintain two households.  I continue to serve my nation and fellow Soldiers."

33.  On 9 January 2006, the board found that the applicant did commit a serious offense under the provisions of Army Regulation 635-200, chapter 14, for indecently assaulting a child under the age of 16 years of age.  The board recommended that he be separated from the service with an under other than honorable conditions characterization of service.

34.  A DA Form 4187 (Personnel Action), dated 3 February 2006, shows the applicant's company commander recommended denial of his request to retire in lieu of a separation proceedings (chapter 14).    

35.  On 27 June 2006, the Secretary of the Army (Manpower and Reserve Affairs) approved the recommendation of the board and directed the applicant receive an Under Other Than Honorable Conditions Discharge Certificate under the provisions of chapter 14 of Army Regulation 635-200 for misconduct – commission of a serious offense and be reduced to the lowest enlisted grade.  On 30 June 2006, he was separated from the service, in pay grade E-1, after completing 25 years and 7 days of creditable active service.

36.  The applicant applied to the ADRB on 27 September 2007, requesting that his discharge be upgraded to honorable based on the same issues he has asserted to this Board.  The ADRB conducted a review of his records and determined that his discharge was both proper and equitable, given the circumstances of his case.  

37.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel on active duty.  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.   

38.  Army Regulation 635-200, paragraph 2-6 states when a board is completed, the board proceedings will be reviewed by a qualified officer fully cognizant of applicable regulations and policies to determine whether the action meets the requirements of this regulation.  If the board recommends that a discharge under other than honorable conditions be issued and the Soldier identifies specific legal issues for consideration by the separation authority, the proceedings will be reviewed by an officer of the Judge Advocate General’s Corps.  Upon completion of the review, if the Board had recommended separation for misconduct (chapter 14), the separation authority may take action and direct separation of the Soldier for misconduct.  

39.  Army Regulation 635-200, paragraph 2-6 states that a Soldier who has completed 20 or more years of active service creditable toward retirement and for whom separation is recommended to Headquarters, Department of the Army (HQDA) will be given the opportunity of applying for retirement.  However, he/she will be told that authority to submit the application does not assure that it will be approved.

40.  Army Regulation 635-200, paragraph 2-11 states the rules of evidence for court-martial and other judicial proceedings are not applicable before an administrative separation board.  Reasonable restrictions will be observed, however, concerning relevancy and competency of evidence of newly discovered evidence.  If prior to the beginning of the board hearing the commander or the board recorder discovers additional evidence, similar in nature to that previously considered by the commander in recommending the separation, that evidence is admissible.  Such evidence may be considered by the board as proof of an amended or new factual allegation in support of a reason for separation that was cited in the commander’s recommendation for separation.  


41.  Army Regulation 635-200, paragraph 2-12 states the board will determine whether each allegation in the notice of proposed separation was supported by a preponderance of the evidence.  The board will then determine whether the findings warrant separation.  If more than one basis for separation was contained in the notice, there will be a separate determination for each basis.  The board convened to determine whether a Soldier should be separated for misconduct will recommend that the Soldier be separated because of misconduct (and recommend a characterization of service of honorable, general (under honorable conditions), or under other than honorable conditions) or retained in service; when the board recommends separation, it may also recommend that the separation be suspended; but the recommendation as to suspension is not binding on the separation authority.  If separation or suspension of separation is recommended, the board will also recommend a characterization of service or description of separation.  When board action is completed on a Soldier with over 18 years of service, the findings and recommendations of the board, with complete documentation and the recommendation of the convening authority, will be forwarded to HQDA for final determination when the convening authority recommends discharge.

42.  Army Regulation 635-200, paragraph 3-7a, 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.  

43.  Army Regulation 635-200, paragraph 3-7b, 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.

44.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely or inaccurate is not filed in an individual's official personnel files; and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  


45.  Army Regulation 600-37, paragraph 7-2a provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant and his counsel that the applicant's under other than honorable conditions discharge should be upgraded to an honorable discharge and the supporting argument and evidence presented were carefully considered.  However, there is insufficient evidence to support these claims.

2.  Counsel contends that the separation board lacked sufficient evidence and the allegations made against the applicant were founded primarily upon the alleged victim's claims that he had committed an act of sexual misconduct.  However, evidence of record shows that on two occasions the alleged victim reported the applicant had sexually assaulted her while in Georgia and Texas. 

3.  Regardless of what happened in the applicant's home in September 2005, he displayed extremely poor judgment in the audiotape conversation with the alleged victim wherein he told her words to the effect "remove your clothing so I can touch your breast."  The fact that he lived in the same household with the alleged victim and she had previously made an allegation of sexual assault weakens his protestations that nothing improper occurred.

4.  Counsel contends that the testimony against the applicant by the victim's high school counselor and CID investigators were based on a story the alleged victim had concocted and repeatedly confessed to be entirely false.  Counsel further contends that the CID's investigation was unsupported by any sufficient hard evidence and that the audiotape recorded by the alleged victim was never authenticated.

5.  Evidence of record shows during the initial CID investigation the alleged victim gave statements to investigators that the applicant had been sexually assaulting her since the sixth grade and provided an audiotape recording of the latest incident.  The applicant's son gave a statement that he witnessed his father inappropriately touch her to investigators.  Even though the alleged victim and applicant's son later recanted their initial statements, evidence of record shows 
that the board allowed their written testimonies to be entered as evidence in the hearing along with the audiotape recording.  Therefore, it appears that the board did find their initial testimonies and audiotape recording as credible evidence. 

6.  Counsel contends the board was given evidence prior to the convening date that tainted the effects of the board's decision and that the legal advisor for the board operated as an advisor for the Government during the investigation of charges against the applicant.  When the board convened, the president noted that because the applicant was alleged to have committed serious misconduct over the period of time from 1999 to 2005, and if the recorder could link the misconduct as a pattern, then it was proper to reach back to a prior enlistment term and consider that misconduct as well.  

7.  Given the facts of the case, and considering the arguments presented in the applicant's hearing, the administrative board was not tainted by receiving packets before the board convened.  There is no evidence, and counsel has not provided evidence, that the legal advisor for the board operated as an advisor for the Government.  There is no indication that he was acting as an advocate for the imposing recorder and counsel's presumption that he was biased based on his position is not supported by the evidence in this case.

8.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his right.  The character of discharge is proper considering the nature of his offenses.

9.  Counsel has submitted neither probable evidence nor a convincing argument in support of the applicant's case.

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

11.  In view of the foregoing, there is no basis for granting the applicant's requested relief.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_____XX___  ____XX____  ___XX_____  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.



      __________XXX_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080012492



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ABCMR Record of Proceedings (cont)                                         AR20080012492



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