RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 February 2006
      DOCKET NUMBER:  AR20050007288


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Robert W. Soniak              |     |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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's records be corrected
to show he retired for length of service.

2.  Counsel states that, until the applicant's court-martial in October of
1997, he was one of the Army's best officers and clearly the cream of the
warrant officer crop.  By the applicant's own admission, his conduct
towards his stepdaughter was abhorrent and unforgivable.  There is no
rational or viable explanation for what happened in this case, and the
applicant has never pretended there was.

3.  Counsel states there are numerous factors that led up to the type of
conduct that caused the applicant's fall from grace.  Marital separation,
financial and work stressors, and other factors all boiled up inside of him
and led to shocking behavior.  These factors do not excuse the applicant's
behavior, and the applicant has consistently accepted full responsibility
for his actions.

4.  Counsel states the applicant's family has forgiven him for his conduct.
 His stepdaughter has found it in her heart to forgive the only real father
she had ever known.  Lieutenant Colonel T___ testified at the applicant's
trial that the applicant showed genuine remorse for his actions and
continued to work hard up until the day before his trial.  Lieutenant
Colonel T___ testified that she could not think of anyone who had greater
rehabilitative potential than the applicant.  Numerous character witnesses
testified as to his duty performance and moral fiber at his trial.

5.  Counsel states the applicant has paid a tremendous price for his
misconduct. His family was torn apart, he spent over six years in
confinement, and he lost his retirement.  By restoring the applicant to the
retired ranks, and allowing him to draw his retired pay from this date on
(even at a lower rank), the Board will be doing the applicant a great
service.

6.  Counsel states that, while at the U. S. Disciplinary Barracks, the
applicant completed numerous sexual offender programs, including a 3-year
intense therapy program.  He completed the sexual addictions course.  His
grant of parole was predicated upon his receiving sexual offender
treatment, and he has done so.  Since his release from confinement, the
applicant has taken significant steps to turn his life around.  He moved in
with his ailing mother and is his mother's main care provider.  He attends
weekly Bible study and church and has dedicated himself to God.

7.  Counsel states the applicant and the victim's mother have an amicable
relationship, and she supports his request for clemency and retirement.
She knows the applicant is a good man who suffered an indescribable fall
into the worst type of sin and crime one can imagine.  The Board can take
the first step towards recognizing the applicant's rehabilitation and the
tremendous loss he incurred as a result of his actions.  This will not be
some form of windfall for the applicant.  His ex-wife and stepdaughter will
get the lion's share, if not all, of the applicant's retirement benefits,
either through civil litigation or by way of a divorce settlement.  Money
will never fix what the applicant broke, but it can help this family begin
to heal.  If the applicant's family is in agreement with his petition, it
seems without cavil that the Board should approve the request.

8.  Counsel provides a letter from the applicant's former spouse.  In the
letter, the applicant's former spouse stated the applicant's crimes against
his family were severe indeed.  However, since his release from Fort
Leavenworth, she believes he has made sincere and significant efforts to
mitigate the harm he has caused.  He has gone out of his way not to turn
away from his family.  One of the primary reasons for seeking his retired
pay is that half of it would go to the family he harmed so severely.  Her
son wants to join the Army after college but feels the Army has been unjust
in denying his father at least part of his retirement that he earned over
28 years.  Money can never compensate his children for his conduct, but it
can help them bear the residual burden of those crimes.  It would also help
relieve her of the $150,000 in debt with which they were burdened when he
was arrested and imprisoned.

9.  Counsel also provides a certificate of completion dated 15 October
2002; Headquarters, Department of the Army General Court-Martial Order
Number    15 dated 1 October 2002; and the applicant's DD Form 214
(Certificate of Release or Discharge from Active Duty) for the period
ending 21 October 2002.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records are not available to the Board.  This
case is being considered using reconstructed records, which primarily
consist of his record of trial and his DD Form 214.

2.  The applicant apparently enlisted in the Regular Army on 14 September
1971 for training as an aviation warrant officer.  He was apparently
appointed a warrant officer one on 2 October 1972 and entered active duty
on that date.

3.  Unsworn testimony from the applicant in the record of trial indicated
that, in November 1992, the applicant was reassigned to Hawaii and went
there alone to prepare for his family.  Two of his stepchildren (including
S___, the stepdaughter he abused) arrived in June 1993.  His wife and his
other stepdaughter, J___, arrived that fall. His wife could not find a job
and, in January 1994, she returned to Alabama.  Their financial situation
deteriorated.  He sent his stepson to Alabama in June 1994.  He sent J___
to Alabama two months later.  His stepdaughter, S___, remained with him.
He became obsessed with S___ and she replaced his wife.

4.  On 2 October 1997, the applicant was convicted, pursuant to his pleas
of guilty, of the following offenses:  two specifications of carnal
knowledge by wrongfully having sexual intercourse with his stepdaughter, on
divers occasions; two specifications of sodomy with his stepdaughter, a
child under the age of 16 yeas, on divers occasions; two specifications of
committing indecent acts upon the body of his stepdaughter, a female under
16 years of age, on divers occasions; and one specification of knowingly
permitting his stepdaughter, a minor female under the age of 16, to engage
in sexually explicit conduct for the purpose of producing a visual
depiction of such conduct and transporting the depiction in interstate
commerce.  The offenses occurred between on or about    6 February 1994 and
on or about 10 September 1995, at or near Schofield Barracks, HI; and
between on or about 11 September 1995 and on or about      15 July 1997, at
or near Fort Campbell, KY.  At the time of the offenses, the victim, the
applicant's stepdaughter, was between 13 to 15 years of age.  "Divers
occasions" meant the offense described by the specification occurred at
least two or more times.  The applicant admitted in the Stipulation of
Fact, which was admitted into evidence as Prosecution Exhibit 1, that he
eventually had sexual intercourse with his stepdaughter "an average of one
to three times a week."

5.  The applicant's adjudged sentence was forfeiture of all pay and
allowances, confinement for 30 years, and dismissal from the service.

6.  On 8 October 1997, the convening authority directed that automatic
forfeitures be waived in the amount of $3,000.00 per month for three months
and paid to the applicant's then wife.  On 26 January 1998, a second
request for waiver of forfeitures was denied.

7.  By letter dated 5 December 1997, the Staff Judge Advocate, 101st
Airborne Division and Fort Campbell, informed counsel for the applicant's
former spouse (first wife, Ms. A___) that only the applicant's spouse (then
his second spouse, now also his former spouse, Ms. S___ C___) and
stepdaughter (i.e., S___) were eligible for payment of transitional
compensation.  Ms. A___ was also not entitled to a portion of the
applicant's retired pay "because 10 United States Code (U.S.C.) 1408(h)
only allows for a spouse or former spouse to receive a portion of a service
member's retired pay if the spouse was the victim of the abuse which
resulted in the service member's termination."

8.  On 26 January 1998, pursuant to a pre-trial agreement, the convening
authority denied the applicant's sentence and approved only so much of the
sentence as provided for confinement for 12 years, forfeiture of all pay
and allowances, and a dismissal.  The convening authority also denied the
applicant's request for clemency.

9.  On 3 December 1999, the U. S. Army Court of Criminal Appeals set aside
the initial action of the convening authority (due to some confusion about
what the convening authority did or did not consider) and returned the
record of trial to The Judge Advocate General for a new post-trial
recommendation and action by the same or a different convening authority.

10.  On 14 June 2000, after a new post-trial recommendation and action, the
Army Court of Criminal Appeals affirmed the findings of guilty and the
sentence.  The conviction became final on 26 September 2001, when the U. S.
Court of Appeals for the Armed Forces denied the applicant's petition for a
grant of review.

11.  On 21 October 2002, the applicant was dismissed from the Army pursuant

to his sentence by court-martial.  He had completed 24 years, 11 months,
and
4 days of creditable active service.

12.  Title 10, U. S. Code, section 1293 states the Secretary concerned may,
upon the warrant officer's request, retire a warrant officer of any armed
force under his jurisdiction who has at least 20 years of active service
that could be credited to him under section 511 of the Career Compensation
Act of 1949, as amended.

13.  Department of Defense Instruction 1342.24 (Transitional Compensation
for Abused Dependents), paragraph 6.4 states a spouse may not receive
payments under both section 1059 and section 1408(h) of Title 10, U. S.
Code.

14.  Title 10, U. S. Code, section 1408 (Payment of retired or retainer pay
in compliance with court orders), subsection 1408(h) (Benefits for
dependents who are victims of abuse by members losing right to retired
pay), states:

      (1) If, in the case of a member or former member of the armed forces
referred to in paragraph (2)(A), a court order provides (in the manner
applicable to a division of property) for the payment of an amount from the
disposable retired pay of that member or former member…to an eligible
spouse or former spouse of that member or former member, the Secretary
concerned, beginning upon effective service of such court order, shall pay
that amount in accordance with this subsection to such spouse or former
spouse.

      (2) A spouse or former spouse of a member or former member of the
armed forces is eligible to receive payment under this subsection if—

            (A) the member or former member, while a member of the armed
forces and after becoming eligible to be retired from the armed forces on
the basis of years of service, has eligibility to receive retired pay
terminated as a result of misconduct while a member involving abuse of a
spouse or dependent child…and

            (B) the spouse or former spouse—

                 (i) was the victim of the abuse and was married to the
member or former member at the time of that abuse; or

                 (ii) is a natural or adopted parent of a dependent child
of the member or former member who was the victim of the abuse.

      (6) Notwithstanding any other provision of law, a member or former
member of the armed forces referred to in paragraph (2)(A) shall have no
ownership interest in, or claim against, any amount payable under this
section to a spouse or former spouse of the member or former member.

      (7)(A) If a former spouse receiving payments under this subsection…
marries again after such payments begin, the eligibility of the former
spouse to receive further payments under this subsection shall terminate on
the date of such marriage.

      (7)(B) A person's eligibility to receive payments under this
subsection that is terminated under subparagraph (A) by reason of
remarriage shall be resumed in the event of the termination of that
marriage by the death of that person's spouse or by annulment or divorce.
The resumption of payments shall begin as of the first day of the month in
which that marriage is so terminated.  The monthly amount of the payments
shall be the amount that would have been paid if the continuity of the
payments had not been interrupted by the marriage.

DISCUSSION AND CONCLUSIONS:

1.  Retirement upon completion of 20, but less than 30, years of active
duty is not a right.

2.  The applicant had about 23 years of active duty service when, according
to the record of trial, he started abusing his stepdaughter on or about 6
February 1994 (approximately one month after his wife left Hawaii in
January 1994, before he sent his stepson to Alabama in June 1994, and
before he sent his other stepdaughter to Alabama around August 1994).  The
applicant taped his stepdaughter engaging in explicit sexual conduct, he
shipped that tape to his new assignment at Fort Campbell, KY, and he
continued to abuse his stepdaughter after he arrived at Fort Campbell in
September 1995 until about July 1997.

3.  The applicant's sincere regret that he caused such harm to his family,
and his family's forgiveness of him, has been carefully considered by this
Board.  However, considering the applicant's very serious misconduct over a
period of more than three years at two different installations, it appears
the Secretary of the Army made a proper decision not to honor him with a
military retirement.

4.  Information obtained from the Defense Finance and Accounting Service
(DFAS) indicated the applicant's former spouse, Ms. S___ C___, may still
(provided she never received transitional compensation) apply for payments
under Title 10, U. S. Code, section 1408(h).  The basic former spouse
application consists of an application form (DD Form 2293) and a copy of
the pertinent court order recently certified by the clerk of the court.
She would need to provide a copy of the court-martial order signed by the
convening authority.

5.  If it is not apparent from the court-martial order that S___ was a
dependent child of the applicant, or that his former spouse, Ms. S___ C___
was a natural or adoptive parent of S___, DFAS might need an affidavit from
someone who was familiar with the case (such as the prosecutor), verifying
those facts.  Since the prosecutor might be hard to locate, other documents
that could prove S___ was a dependent child of the applicant at the time of
the offenses could consist of tax returns or Department of Defense school
records.  S___'s birth certificate would establish who her natural mother
was.  A copy of the applicant's DD Form 214 would be needed.

6.  The applicant or his former spouse can obtain the application form and
additional information about the Uniformed Services Former Spouses
Protection Act (USFSPA) from DFAS's Web site at:
www.dod.mil/dfas/money/garnish/.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jlp___  __ded___  __rws___  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.




                                  __Jennifer L. Prater__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007288                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060214                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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