MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 January 2001
	DOCKET NUMBER:   AR2000043021

	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	
	Ms. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Ms. Ann M. Campbell		Member	
	Mr. Donald P. Hupman		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 general discharge (GD) be upgraded to honorable.

APPLICANT STATES:  In effect, that he was discharged based on false allegations by his former stepson, who has now recanted them in certified letters in which he admits that the allegations were false.  In support of his request, the applicant submitted letters of character references, educational accomplishments, certificates of achievement, and a letter from his wife. 

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

With almost 6 years of Reserve service, the applicant enlisted in the Regular Army for a period of 4 years on 9 March 1988.  Following all required military training, he was awarded MOS (military occupational specialty) 19D, Cavalry Scout, and was assigned to Germany, where he served from 8 July 1988 to 29 January 1990.

On 4 January 1990, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 14, Army Regulation 635-200 for misconduct – commission of a serious offense with a GD.  The unit commander recommended the applicant be separated from the Army because the applicant tried to convince his stepson to have sexual intercourse with his wife (stepson’s mother) and, after he could not convince his stepson, he indecently assaulted him by fondling his genitals.

A Criminal Investigation Report indicates other occasions of child abuse and that on at least one occasion, the stepson was removed from the home.

The applicant acknowledged notification, waived legal counsel, waived a hearing by a board of officers, and did not submit a statement in his own behalf.  The unit and intermediate commanders recommended approval of the separation action.

On 10 January 1990, the appropriate authority approved the applicant’s discharge with a GD.  Accordingly, on 30 January 1990, the applicant was discharged from the Army after completing 1 year, 10 months, and 22 days of creditable active military service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

On 24 August 1994, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

On 15 June 2000, the applicant again applied to the ADRB for an upgrade of his discharge; however, it was beyond its 15-year statute of limitations and he was referred to the Army Board for Correction of Military Records.

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.  He submitted a letter from his ex-wife stating her son lied about the incident of the applicant fondling his genitals; however, there is no letter from his stepson and the ADRB did not reference one at the time it reviewed the applicant’s request for a discharge upgrade.  Furthermore, the applicant admitted in a sworn statement rendered at the time of the incident that he grabbed his stepson's crotch area and did not let go until he finished talking to him.

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

3.  The applicant was afforded every opportunity to defend himself; nevertheless, he declined to present his case before a board of officers or to make a statement in his own behalf.

4.  Having examined all the circumstances, the Board concludes that the applicant's act of misconduct, sexual abuse of his stepson, was a departure from the standards of conduct expected of soldiers in the Army and did, indeed, diminish the quality of his service below that meriting a fully honorable discharge.

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

__emw__  __amc___  __dph___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043021	
SUFFIX		
RECON		
DATE BOARDED	20010111	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19900130	
DISCHARGE AUTHORITY	AR 635-200, C14	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.9235	
2.		
3.		
4.		
5.		
6.