MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            2 December 1998
	DOCKET NUMBER:   AC98-11548

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. John H. Kern		Member	

	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 be upgraded to an honorable discharge. 

APPLICANT STATES: That he was discharged because of a civilian charge of “Risk of Injury” in March 1973 and he has never been in any trouble since then. 

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

The applicant was commissioned as a USAR second lieutenant on 8 June 1970.  He was then transferred to the Connecticut Army National Guard as a medical service corps officer on 3 August 1971.

In 1973 the applicant was charged by the State of Connecticut of one count of being guilty of injury or risk of injury to a child (9 years of age), of two counts of deviate sexual intercourse in the first degree, two counts of sexual misconduct in the first degree, and two counts of sexual contact in the first degree. 

On 23 March 1973 the applicant plead guilty to the charge of injury or risk of injury to a child.  The court accepted his plea and sentenced him to imprisonment for no less than 1 year and not more than 5 years in a correctional institution.  The judge suspended the execution of the sentence and committed him to the custody of a probation officer for a period of 3 years on the condition that psychiatric treatment be continued with his present doctor.  The Attorney of the State indicated that he was at that point unwilling to further prosecute the remaining charges.

On 28 March 1973 the applicant was discharged from the Connecticut Army National Guard under other than honorable conditions due to his conviction of a felony (sex-offender).  He was then transferred to the USAR Control Group (Annual Training). 

On 18 September 1973, a suspension of favorable personnel actions (Flag) was initiated against the applicant indicating that elimination action was being initiated under the provisions of Army Regulation 135-175.

The applicant was informed that elimination procedures were being initiated against him and was informed of the options available to him and his right to be represented by military counsel.

On 30 November 1973 he elected to tender his resignation as a Reserve commissioned officer of the Army in lieu of elimination under the provisions of Army Regulation 135-175.  He also submitted a letter from his physician indicating that his illness had been corrected and that he should be considered for a discharge that would not harm his employment prospects.

The applicant’s resignation was accepted by the Adjutant General of the Army Reserve Personnel and Administration Center (RCPAC) on 12 December 1973.

Accordingly, he was discharged from the USAR on 14 January 1974 under other than honorable conditions based on his resignation in lieu of elimination.  

Army Regulation 135-175 prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  It states, in pertinent part, that officers who commit acts of personal misconduct, conduct unbecoming an officer, or are convicted by civil court of a felony when no confinement results, authorizes elimination of an officer due to moral or professional dereliction.  An honorable, general, or discharge under other than honorable conditions may be issued under these circumstances.   

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.  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.

2.  The applicant’s resignation in lieu of elimination was conducted in accordance with applicable law and regulations in effect at the time with no indication of any procedural errors which would tend to jeopardize his rights.

3.  The applicant’s contentions of good post-service conduct have been noted by the Board.  However, given the seriousness of the charges against him and his otherwise undistinguished record, there is insufficient grounds to warrant further relief.

4.  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

___fvo __  ___gp___  ___jhk __  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-11548	
SUFFIX		
RECON		
DATE BOARDED	1998/12/02	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1974/01/14	
DISCHARGE AUTHORITY	AR135-175	
DISCHARGE REASON	A61.00	
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         1.  A81.00		
2.  A52.00		
3.  A61.00		
4.		
5.		
6.