MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            10 March 1999
	DOCKET NUMBER:   AC98-12629
				   AR1998013113

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual. 

	Mr.	Loren G. Harrell		Director	
	Ms.	Deyon D. Battle		Analyst	

	The following members, a quorum, were present:

	Mr.	Fred K. McCoy		Chairperson	
	Ms.	Meta Waller		Member	
	Mr.	Kenneth L. Wright		Member	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his discharge under other than honorable conditions (UOTHC), be changed to a general discharge.

APPLICANT STATES:  That his discharge is inequitable because partiality was given to other officers with similar charges at that time which allowed them to resign their commissions.  He further states that his discharge was unfair because he believes that strong German/American political influences overrode his 12 years of honorable service.  He states that his commanding officer was married to a German national and that he plead guilty to the charge after being advised by his counsel of the situation.  He continues by stating that his discharge was too severe because he was offered the opportunity to accept an enlisted rank again and start over, however, he and his wife decided not to accept the offer.  He concludes by stating that the charge of conduct unbecoming an officer by attempting carnal knowledge, even though it involves moral turpitude, was not a sufficient basis to warrant such a sentence and a resignation of commission would have served the same purpose and not had such a lasting effect.

EVIDENCE OF RECORD:  The applicant's military records show:

On 1 July 1953, he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as a communications center specialist and he remained on active duty through a series of reenlistments.  On 17 April 1964, after he completed Officers Candidate School, he was commissioned as a second lieutenant.  On 22 February 1965, he was assigned to Headquarters Company, 1st Battalion, 68th Armor, Germany.

On 7 October 1965, the applicant was tried and convicted by a general        court-martial of attempting to commit the offense of carnal knowledge with a female born on 1 November 1950, under 16 years of age, by removing her panties and attempting to have sexual intercourse with her.  His sentence consisted of a dismissal from the service and confinement at hard labor.

The applicant voluntarily submitted a resignation for the good of the service in lieu of trial by court-martial on 18 October 1965.  However, the request was returned without action because he had already been tried and convicted by a general court-martial.

The appropriate authority approved the sentence on 6 November 1965 and a Board of Appellate Review affirmed the sentence on 11 February 1966.  Accordingly, on 27 June 1966, the applicant was dismissed from the Army under other than honorable conditions pursuant to his general court-martial conviction.  He had completed 12 years 3 months and 8 days of total active service. 
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant.

2.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and dismissal were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant’s contentions have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.  There is no evidence that partiality was given to other officers with similar charges at that time which allowed them to resign their commissions or that strong German/American political influences overrode his 12 years of honorable service.  He was properly dismissed from the Army because of his conviction by a general court-martial.

4.  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.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12629/AR1998013113	
SUFFIX		
RECON	 	
DATE BOARDED	1999/03/10	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1966/06/27	
DISCHARGE AUTHORITY	GCM	
DISCHARGE REASON	GCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  877	A94.07	
2.  		
3.		
4.		
5.		
6.