MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            01 JULY 2003                  
	DOCKET NUMBER:   AR2003084011

	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. Ted S. Kanamine		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Karen Y. Fletcher		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, the applicant requests that any information in his records that reflect sexual misconduct on his part, or that show that he stole from the government be expunged from his records.  

APPLICANT STATES:  That he received nonjudicial punishment under Article 15, UCMJ for misconduct.  He states that he did curse his commanding officer, but only after 5 hours of questioning by the CID.  He stated what they wanted to hear in order to end the questioning.  While in Korea, he was accused of misconduct with female soldiers.  He was never involved in inappropriate actions with females.  The sexual misconduct information should be deleted.  Approximately 18 months after he was discharged, he was questioned about missing items from the Department of Mental Health at Fort Hood, Texas. Information in his records that he stole items from the Department of Mental Health at Fort Hood, Texas, is untrue.  He unknowingly received the stolen items, and provided the CID information that led to the recovery of those items.

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

There is no information in the applicant's records concerning an investigation into missing items at Fort Hood, or that he stole items from the government.  Consequently, the Board will not address this issue.

The applicant entered on active duty in the Army on 20 July 1988 and remained on continuous active duty until his discharge in 1995.

After completing training, he was assigned to the Army Medical Center in Aurora, Colorado, as a behavioral science specialist.  In July 1991 he was assigned to Fort Hood.  In February 1994 he was promoted to sergeant.  In May 1994 the applicant was assigned to the 18th Medical Command in Korea as a resident treatment facility counselor.  

On 27 January 1995, in a sworn statement to a CID agent, a female soldier stated that she entered the residential treatment facility for treatment on              9 November 1994.  She stated that she had sexual intercourse with the applicant on three occasions in December 1994.

On 1 February 1995, in a statement to a CID agent, a female soldier stated that she had entered the residential treatment facility for alcohol treatment, and that she had engaged in a sexual act with the applicant on one occasion.

On 1 February 1995 the applicant signed a DA Form 3881 (Rights Warning Procedure/Waiver Certificate) in which he stated that he understood his rights concerning the investigation into the suspected offenses of failure to obey an order or regulation, adultery, and indecent acts with another, and that he was willing to discuss the offenses under investigation and make a statement without talking to a lawyer first and without having a lawyer present with him. 

On 1 February 1995, in a sworn statement to a CID agent, the applicant admitted to having sexual intercourse with the one female soldier, and engaging in a sexual action with the other female soldier.

On 27 February 1995 the applicant's commanding officer notified the applicant that he was initiating action to separate him from the Army.  He informed the applicant that he had been found guilty of three counts of adultery, two counts of disobeying an order from a commissioned officer, and one count of leaving his place of duty without authority.  He informed the applicant that he was recommending that he receive a General Discharge Certificate.

The applicant consulted with counsel, stated that he had been advised on the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 14, its effects, of the rights available to him, and of any action taken by him in waiving his rights.  He stated that he understood that he was entitled to have his case considered by an administrative separation board.  He stated that he voluntarily waived consideration of his case by a board contingent upon receiving a characterization of service no less favorable that general under honorable conditions.  He declined to submit statements in his own behalf.  He stated that he understood the nature and consequences of the general discharge that he might receive. 

On 28 February 1995 the applicant's commanding officer recommended to the separation authority that the applicant be discharged for misconduct, and that he receive a general discharge.  The separation authority approved the recommendation and directed that the applicant be issued a General Discharge Certificate.

The applicant returned to the United States and was discharged at Fort Lewis, Washington on 20 July 1998.  

Army Regulation 600-8-104 provides for the filing in the OMPF of authenticated extracts of completed investigation reports that have resulted in elimination or disciplinary action.  It also provides for the filing in the OMPF of case files for approved separations, to include elimination board proceedings and administrative discharge actions. 

Army Regulation 600-37 states that completed investigative reports, to include criminal investigation reports, that have resulted in elimination or disciplinary action against the person concerned may be filed in the performance portion of the OMPF without further referral to the recipient.
 
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 documents contained in the applicant's OMPF are properly maintained.  There is no error or injustice in the sworn statements and the administrative board proceedings being maintained in his OMPF.

2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

3.  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.

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

__TSK __  __MHM  _  __KYF __  DENY APPLICATION

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

INDEX

CASE ID	AR2003084011	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030701	
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.	134.00	
2.		
3.		
4.		
5.		
6.