MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           6 March 2001
	DOCKET NUMBER:   AR2000042982

	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. Carl W. S. Chun		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley 		Chairperson	
	Mr. Ernest W. Lutz 		Member	
	Mr. Harry B. Oberg 		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:  In effect, reconsideration of his request to set aside his administrative separation action of 23 December 1983 and/or upgrade his under other than honorable conditions (UOTHC) discharge to honorable.

APPLICANT STATES:  That his administrative separation action did not consider evidence of favorable mitigating circumstances both before and after his civil conviction and subsequent to his discharge.  He argues that his civil conviction was not militarily connected and had no adverse effect on his duty performance or overall military effectiveness.  In support of his application, the applicant submits:  a copy of a 17-page brief with attachments (3-9) submitted to the Army Discharge Review Board (ADRB) on 10 December 1998; a copy of a 30 April 1999 letter from the Office of the Governor (LA) stating that the Governor was in receipt of a pardon recommendation from the Louisiana Board of Pardons; copies of three OSA Forms 172, dated 21 May 1999, denying the applicant's request for a discharge upgrade; a copy of a 13 July 1999 letter of complaint from applicant's counsel to the Joint Service Review Activity (JSRA) concerning the ADRB decision of 21 May 1999; a copy of the JSRA's 15 November 1999 decision on the applicant's complaint; a copy of the ADRB's revised OSA Form 172, dated 3 December 1999, incorporating the JSRA's recommendation; a copy of this Board's 19 June 1985 Memorandum of Consideration; and a copy of a video tape of the applicant's hearing before the ADRB on 11 May 1999.

COUNSEL CONTENDS:  As stated above.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 19 June 1985 (AC84-03903).  Although the applicant, based on the 19 June 1985 case, has not submitted his reconsideration request to the Board within the time limit specified by Army Regulation 15-185, he is granted reconsideration based on his 21 May 1999 hearing before the ADRB.

On 16 April 1978, the applicant was arrested in Waveland, Mississippi on a charge of engaging in crimes against nature.  At that time, the Orleans Parish (LA) District Attorney's Office began an investigation of the applicant for allegedly committing crimes against nature (sex acts) with young boys in New Orleans, Louisiana.  The applicant, through counsel, contacted the families of the boys involved and offered a sum of money in return for a signed affidavit absolving the applicant of any wrongdoing.  The applicant was subsequently charged with public bribery and conspiracy to commit public bribery of a witness, a felony.  Although a Nolle Prosequi was entered as to the charge of crimes against nature, he was convicted of public bribery and sentenced to 2 years' confinement for each offense, suspended, and placed on 5 years' probation.

On 2 June 1982, the applicant was notified that the United States Army Reserve had initiated separation action against him for personal misconduct and conduct unbecoming an officer.  In a hearing before a board of officers on 13 November 1982, a determination was made that there was sufficient evidence to warrant the applicant's elimination under the provisions of Army Regulation 135-175.  It was further recommended that he receive a UOTHC discharge.  The findings and recommendation were approved and the applicant was separated with a UOTHC discharge on 23 December 1983.

The applicant appealed to the ADRB seeking an upgrade of the characterization of discharge.  Following a formal hearing in Atlanta, Georgia on 11 May 1999, the ADRB denied his request on 17 May 1999.  The applicant, through counsel, filed a complaint against the ADRB with the Department of Defense Joint Service Review Activity.  On 12 November 1999, the JSRA found no procedural or legal defects in the ADRB's decision.

Army Regulation 135-175, Separation of Officers, prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  It states, in pertinent part, that involuntary separation of an officer due to moral or professional dereliction is authorized under certain conditions, including conviction by a civil court of a felony when no sentence to confinement results.

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 this requirement.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The Board concurs with the findings and conclusions of the ADRB; findings and conclusions that have already been reviewed and affirmed by the JSRA.

4.  The fact that the Louisiana Board of Pardons has recommended that the Governor of Louisiana issue a pardon to the applicant is irrelevant to the matter of the applicant's administrative elimination from the Army Reserve.  A pardon is remission of punishment or penalty without indicating exoneration from guilt. 

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6.  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

__sk____  __ewl____  __hbo___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000042982	
SUFFIX		
RECON	19850619	
DATE BOARDED	20010306	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19831223	
DISCHARGE AUTHORITY	AR 135-175	
DISCHARGE REASON	A61.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	110.0000	
2.	134.0000	
3.		
4.		
5.		
6.