PROCEEDINGS


	IN THE CASE OF:  
	                 

	BOARD DATE:      11 March 1998
	DOCKET NUMBER:   AC95-08897

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  The following members, a quorum, were present:



	The applicant and counsel if any, did not appear before the Board.

	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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his bad conduct discharge be upgraded to honorable.

3.  He states that he had over 6 years of honorable service and was honorably discharged in 1952.  He further states that he was awarded the Good Conduct Medal and he believes it should be taken into consideration.

4.  The applicant's military records show that on 23 June 1949 he enlisted in the Army in the pay grade of E-1 for 3 years.  He completed basic combat training at Fort Riley, Kansas and went on to successfully complete his training as a dental surgical technician at Fort Sam Houston, Texas.

5.  He was eventually assigned to the US Army Hospital at Sandia Base, New Mexico where he reenlisted for a period of 6 years on 24 June 1952.  In March 1954 he was ordered overseas to Japan where he performed the duties his duties as a dental technician.

6.  Charges were preferred against the applicant on 17 December 1955 and referred to a general court-martial.  He was charged with committing sodomy with a female Japanese national who was an employee at the dental clinic.  He pled not guilty to the charge.

7.  On 19 December 1955 an investigation was initiated in regard to the charges against the applicant.  During the investigation, the applicant voluntarily admitted to having sexual intercourse with his accuser for the first time in an automobile and the second time and third time in an apartment house.  He further stated that he was alone in a room on the third occasion when his accuser was directed to the room after he had gone to bed.  She wanted to have sexual intercourse; however, because he was drunk, he could not get an erection.  The accuser, in order to cause an erection, performed oral copulation on him.  He stated that a few weeks following this incident, she (the accuser) remained at the dental clinic after duty hours.  She later visited him while he was sitting on his bed in his room.  He further stated that they both removed their clothing and she began to fondle his genital organs causing an erection.  She then took his penis with her hands and placed it in her mouth.  He continued by stating that he was trying to break off the affair and arranged to have a friend (a PFC) stand outside of the room and take photographs of the incident.  He stated that the plan was for him to give a signal and his friend would take the photographs.  According to the evidence, he gave the signal and his friend got photographs of the two of them having carnal copulation.  After the photographs were taken, they went on to have sexual intercourse.  The applicant admitted to conjuring up the plan for protection against her because she knew that he was married and she threatened to expose him if he did not divorce his wife and marry her.  (She was also married at the time.)  He said that he had planned to end the relationship and he believed this to be a good way of getting her to leave him alone.  He concluded by stating that once the photographs were developed she (the accuser) kept asking for them and he told her that she could have them once he returned to the United States.

8.  The PFC was questioned on 22 December 1955.  He stated that he went along with the plan and took the photographs because the accuser was spreading rumors about him trying to force her into bed.  The accuser said that the PFC put the photographs up on a wall at the dental clinic.  He said that he held the photograph to the wall, called her over to see it and at that time he said that he told her to stop telling lies.  He said that he then left the photograph on a ledge and leaning against the wall. 

9.  On the same day, another dental technician submitted a statement indicating that the PFC had told her that the applicant and his accuser were having an affair.  She stated that she did not believe him because the accuser was a married woman with two children.  She stated that she believed that the PFC showed her the pictures to prove that his story was true.  The dental technician further stated that the accuser told her that the PFC approached her and pulled her hands toward his private parts.  She said that she asked the PFC and he denied that the incident ever happened.  The technician said that the accuser remained at work after duty on several occasions to wash her clothes and when she asked her to go home, she always had and excuse for not doing so.

10.  The accuser was also asked to submit a statement on 22 December 1955.  She stated that she was married and had been for 9 years.  She continued on by stating that she became friendly with the applicant because he was nice to her.  She said that she first accepted a date with the applicant in September 1955 and they went for a ride.  She stated that the applicant wanted to have sexual intercourse with her and, although she resisted at first, she finally gave in.  She stated that she took out a condom and made him use it.  She continued by stating that during her second and third date with the applicant they had sexual intercourse and she was not forced in any way.  She said that the applicant asked her to commit oral copulation on their third date.  She said that she did not want to, but he got on top of her and forces his penis into her mouth.  She said that he did not use physical force, however, he threatened her verbally.  She stated that she half agreed and half disagreed.  She said she did not want to but she felt that she loved him.  She continued by stating that when she was leaving the applicant’s room the PFC appeared asking her to have sexual intercourse with him.  She said she refused him and went home.  She said that the PFC repeatedly asked her to go to bed with him and when she continued to refuse him, he put the picture on the wall.  She concluded by stating that the PFC continued to ask her to have sexual intercourse with him and as she refused, he gave her excessive work to do in the clinic.

11.  A second statement was taken from the accuser on 30 December 1955.  She was asked by the investigator if she had told the Japanese authorities about the incident in question.  Her response was that she told about the PFC taking pictures during the incident.  She was asked if she told about her relationship with the applicant.  She said that she told them that he forced her to have sexual intercourse the first time, but not at the time that the PFC took pictures.  She was asked if she told the authorities if she had intercourse with both the applicant and the PFC.  Her response was no.  She was asked twice if she ever had oral copulation with the PFC or at least said that she did. She said no she had not, and never told anyone that she did. The investigator continued by asking her what she had told the captain.  She said that she told him about the pictures and nothing else.  The investigator told her that he had reason to believe that she had intercourse with the PFC or told someone that she did.  She again denied that she had.  She said that she told the captain that the applicant did not physically force her but she was threatened by him.  She was asked if she was threatened with physical violence.  Her answer was no, he said “If you don’t listen to me and intercourse with me, you will be sayonara tomorrow”.

12.  The captain of the dental clinic was also questioned on 30 December 1955.  He told the investigator that the accuser came to him with an interpreter on 14 November 1955 and said that there were some things that she wanted to talk to him about.  However, she could not discuss them in front of her interpreter.  The captain told her to have someone write down her complaint in English and give it to him as she spoke very little English.  On 16 November 1955 the accuser and a male interpreter returned to the captain and told him that the applicant had forced her to have intercourse with him and during the act he had one of his friends take pictures.  She said that the friend threatened to expose the pictures if she didn’t have intercourse with him.  During that statement she admitted that she had intercourse with both the applicant and the PFC.  The captain asked again if both men had had sexual intercourse with her.  She said yes. The captain said he reported the incident to the Provost Marshal on 18 November 1955.

13.  On 24 January 1954, the applicant was tried by a general court-martial.  Several of the applicant’s coworkers testified in his behalf stating that he was an efficient worker and that his reputation and morality was good.  He had no previous convictions and his character of service was considered to be excellent prior to the incident.  A psychiatrist testified and stated that he examined the applicant and found that there was nothing in his past history or present personality to suggest that he was a sexual pervert or had any psychiatric disease.

14.  On 24 January 1956 he was convicted of committing sodomy and he was sentenced to a bad conduct discharge.  The sentence was affirmed by the convening authority and approved by the Board of Military Review on 23 March 1956.

15.  The applicant petitioned the Court of Military Appeals for a review of the decision of the Board of Military Review.  On 22 May 1956 his petition was denied.

16.  Accordingly, the applicant was discharged on 18 June 1956 and he was issued a Bad Conduct Discharge Certificate.
CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations.

2.  Although the discharge was determined to have been otherwise proper at the time of issuance the Board believes that consideration should be given to the fact that the applicant served honorably for 5 years with no previous record of indiscipline, that his character of service was considered to be excellent prior to the incident, and that the evidence suggests that the alleged victim was a willing participant. 

3.  The Board does not condone the applicant’s actions nor is it implying that he should have not been punished for his act.  However, the applicant has lived with the stigma of a bad conduct discharge for an isolated incident that occurred over 40 years ago.  The Board believes that given the circumstances in this case, the punishment has served its purpose and to continue to stigmatize him with a bad conduct discharge would be unjust.

4.  In view of the foregoing, the bad conduct discharge appears unduly harsh.  On the other hand, given his misconduct, a characterization of service as fully honorable is not warranted.  Therefore, it would be just and appropriate to upgrade the applicant’s discharge to a general discharge.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated from the service with a General Discharge Certificate on 18 June 1956.

2.  That the Department of the Army issue to him a General Discharge Certificate from the Army of the United States, dated 18 June 1956, in lieu of the Bad Conduct Discharge he now holds.

3.  That so much of the application as is in excess of the foregoing be denied.
BOARD VOTE:  

  LS      FE     RWG   GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON