MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 APRIL 2003                  
	DOCKET NUMBER:   AR2003083558

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Terry L. Placek		Member	
	Mr. Robert Duecaster		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, that his discharge under other than honorable conditions be upgraded to general under honorable conditions.  

APPLICANT STATES:  The applicant made no statement but deferred to counsel.  

COUNSEL CONTENDS:  In effect, counsel contends that the Board should show compassion in order to assist the applicant in returning to an active ministry.

The applicant was a superb Roman Catholic chaplain who had a romantic affair with a woman ten years ago.  He left the ministry in disgrace with an undesirable discharge and consequently has been barred from active civilian ministry.  The applicant accepts full responsibility for his actions, and asks that his discharge be upgraded so that he might renew his priestly duties in the civilian community.

In January 1991 charges were preferred against the applicant.  In order to avoid litigation, for the greater good of the Catholic Church, he requested discharge.  He received an under other than honorable conditions discharge.

The applicant lives in Honolulu.  The local archdiocese has informed him that an upgrade of his discharge would be a most persuasive milestone on his road back to service as a Roman Catholic priest.  Counsel states that the applicant has been rehabilitating himself for over 10 years. 

Counsel contends that there are four factors significant about the applicant's request – his theological education, subsequent ordination, and ministry work prior to entering the Army; the advice by the Diocese of Honolulu that if he could cleanse his record the Diocese would actively consider returning him to the ministry; the applicant, in church canon law, is technically a priest on extended leave who still enjoys clerical privileges and is in good standing with his diocese; and no matter what happens, the applicant will not abandon his dream of returning to the priesthood. 

The applicant was a superb chaplain with an exemplary record, and though relatively junior, was awarded the Meritorious Service Medal.  His evaluation reports were extremely laudatory. 

The applicant's offenses involved an unrepeated affair with a married woman, the wife of an NCO.  He has had no contact with either the woman or her husband since leaving the Army.  He takes complete responsibility for his conduct.  He pleads for the chance to redeem himself.  After he left the Army, he experienced a spiritual and emotional upheaval.  He values celibacy; otherwise, he would have married a long time ago.  

Counsel cites six significant factors that favor the applicant's request –  his misconduct was heterosexual involving consenting adults; he had no experience with women; it was a solitary incident; the matters are seldom prosecuted as a military crime; there was no horrific breach of trust in that it was not the case of another priest making another excuse; and, his request is not about returning to the Army.

Counsel states the applicant is now successful in real estate, but yearns to return to the priesthood.  He states the applicant has meditated and prayed, and after a decade of healing, asks the Army for help.

Counsel questions how Board members could assess an essentially moral issue, and provides information from a retired Army colonel to assist in addressing that issue.  The questions, answers, and arguments provided by the retired colonel are adequately stated and need no further explanation.

Counsel makes a plea for compassion, stating that the applicant has dealt with the love of God and with temptation.  He sinned in the eyes of his Church, but he elected to stand his ground, reform, and begin the journey back to the celibate priesthood.   

The applicant had an excellent record, except for his one mistake, a personal indiscretion involving a short-lived affair.  He experienced pressures from the hierarchy in 1991, and was cautioned to avoid litigating his case.  He cooperated fully with all authorities, being straightforward.  He has completed an 11-year penance and is ready to return to the church.  He has strongly contributed to his community in charitable and spiritual ways.  He would be welcomed back to the ranks of active clergy.

In support of his request, the applicant provides an 18 December 2002 memorandum from the Acting Director of the Army Staff, a major general, a former rating official.   

Contained in his record is a 25 January 1995 statement of support from his former battalion commander and a 25 August 1998 statement of support from his former squadron commander.  

Also included is a 28 February 2000 letter to the applicant from a priest of the Diocese of Honolulu, who informed him that he would not be bothered if the applicant celebrated mass in private; however, he should not want to do anything that could jeopardize the possibility of his future ministry in the diocese.  He stated that he felt deeply that the applicant was a good priest, who had much to contribute.

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

On 12 December 1986 the applicant accepted a commission as a captain in the Army Reserve.  He was ordered to active duty to attend the chaplain officer basic course on 9 April 1987, with a subsequent assignment to Fort Stewart, Georgia.  
He completed the basic course and was assigned to Fort Stewart as a battalion chaplain.  He was awarded the Meritorious Service Medal for his performance of duty at Fort Stewart.  Sometime in the spring of 1989 he was assigned to Hawaii as a squadron chaplain.  On 21 April 1989 the Chief of Chaplains notified him that his request for conditional voluntary indefinite status was approved.  

The four evaluation reports contained in his record show that his rating officials considered him an outstanding chaplain, with remarks from two of his senior raters, "Chaplain [the applicant] is without question the best Chaplain I have ever served with," and, "Chaplain [the applicant] is the most outstanding Chaplain I have ever known."  

In a 26 December 1990 report of investigation, the investigating officer stated that he found that probable cause existed to believe that the applicant committed the offenses of adultery, conduct unbecoming an officer, and other offenses in violation of the UCMJ.  In support of his findings, he provided statements from the wife of an NCO, who stated that she had been involved in an affair with the applicant beginning in the spring of 1990, and that she participated in numerous sexual encounters with the applicant.  She stated that she informed her husband of the affair in October 1990, but did not disclose the identity of the applicant until early December of that year.  He provided a statement from the NCO who stated that his wife confessed to the affair with the applicant.  He provided a                13 December 1990 statement from the applicant, who denied the affair, stating that his relationship [with the NCO's wife] was not improper.

On 24 January 1991 court-martial charges were preferred against the applicant.
On 25 January 1991 the applicant's commanding officer recommended trial by general court-martial.

In a 28 January 1991 statement the applicant iterated his respect for the Army, his pride in serving his country, and his admiration for the Chaplain Corps.  He stated that because of his personal pride for the Army and his high regard for his fellow chaplains, he chose to resign his commission.  He stated that he did not want to blemish the service, tarnish the integrity of the chaplaincy, and bring himself and the church intolerable anguish and untold emotional pain.  He stated that he asked for a new beginning and a fresh start, and wanted only understanding and compassion.  

On 4 February 1991 the applicant voluntarily tendered his resignation from the Army for the good of the service under the provisions of Army Regulation       635-120, chapter 5.  He stated that he did not desire to appear before a        court-martial or board of officers.  He stated that he had not been subject to coercion with respect to his resignation, and that he had been advised of and fully understood the implications of this action.  He stated that he had been advised that prior to submission of his resignation, he could consult with counsel and be represented by a legally qualified counsel.  He stated that he understood that his resignation might be considered as being under other than honorable conditions.  He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive.

The applicant's commanding officer recommended approval of his request with the issuance of an other than honorable conditions discharge certificate.  In a     7 February 1991 endorsement to the commander of the Total Army Personnel Command (PERSCOM), the commander of the Army Support Command in Hawaii likewise recommended approval of the applicant's request with the issuance of an other than honorable conditions discharge certificate.  He stated that he had approved an abeyance of all proceedings in the applicant's case until Department of the Army acts upon his request for resignation, and that he did not intend to proceed with the case unless the applicant's request was disapproved.

In a 12 February 1991 memorandum, PERSCOM indicated that the Department of the Army ad hoc review board had recommended that the applicant's resignation be accepted with an under other than honorable conditions discharge.

In a 4 March 1991 memorandum to PERSCOM, the Deputy Assistant Secretary (DA Review Boards and Equal Employment Opportunity Compliance and Complaints Review) approved the recommendation of the ad hoc review board, and directed that the applicant be discharged with the issuance of an under other than honorable conditions discharge.

The applicant was discharged on 5 April 1991.  He had 4 years, 2 months, and 26 days of service. 

On 12 September 1998 the applicant requested to the Army Discharge Review Board that his discharge be upgraded to general.  He testified before that board in San Francisco on 20 April 1999.  On 26 April 1999, in a unanimous opinion, the board denied his request.

Army Regulation 635-120, then in effect, provides for the separation of officers.  Chapter 5 of that regulation provides, in pertinent part, that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court martial.  A resignation for the good of the service when approved by Department of the Army is normally accepted under other than honorable conditions. 

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 applicant's voluntary request for separation for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2.  The preponderance of evidence indicates that the applicant entered into an affair with the wife of an NCO.  That the applicant was an outstanding chaplain prior to his affair is not disputed.  The Board has taken note of his evaluation reports, the fact that he was awarded the Meritorious Service Medal, and the statements of support that he has received.  

3.  The evidence shows that the applicant now admits that he had an affair with a married woman and that he accepts full responsibility for his actions.  However, in his 28 January 1991 statement, submitted with his request for resignation he  did not admit to having an affair; in fact, in a statement less than two months prior to his request for resignation, the applicant adamantly denied an improper relationship.  The available evidence belies counsel's contention that the applicant was straightforward.  Furthermore, the contention that the applicant requested discharge in order to avoid litigation for the greater good of the Catholic Church is not accepted.  The applicant requested discharge because he was guilty of the charges preferred and wanted to avoid trial by court-martial.

4.  The Board has taken cognizance of the six factors that counsel states favor the applicant's request; however, none of these factors, either individually or in sum, is so extenuating as to warrant the relief requested.  Not another priest making another excuse, perhaps; however, there was a horrific breach of trust.  The applicant, a Roman Catholic priest, a counselor to those in need of help, not only violated his vows but also dishonored his oath of office.  

5.  The Board notes counsel's account of the arguments provided by the retired colonel.                        

6.  That the applicant has now accepted responsibility for his actions, that he is contrite, that his conduct since his discharge has been commendable, the Board does not question; nevertheless, these, and the line of reasoning put forth by counsel, do not justify upgrading the applicant's discharge.  There is no error in his record nor is there an injustice done to him.    

7.  Neither the applicant nor counsel has submitted probative evidence or a convincing argument in support of his request. 

8.  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 that requirement.
           
9.  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

__RVO__  __TLP  __  __RD___  DENY APPLICATION

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

INDEX

CASE ID	AR2003083558	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030424	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.