MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:   
	


	BOARD DATE:                              
	DOCKET NUMBER:   AC

	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.




	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:  Reversal of his administrative discharge, return to active duty, all back pay and allowances and all other benefits to which he is entitled.

APPLICANT STATES:  The discharge hearing was unjust because an Article 15 he received 10 years prior to the hearing was accepted into evidence; the board president was provided a copy of all documentary evidence approximately 30 days prior to the hearing and conducted an independent investigation of the allegations; and the president showed the documentary evidence to the other board members 10 minutes prior to the hearing.

COUNSEL CONTENDS:  In effect, the discharge hearing was unjust for the same reasons the applicant cites above.  Army Regulation 635-200 states, in relevant part, that adverse information from a prior enlistment should be used only if it has strong probative value on the separation and that conduct from prior enlistment should be introduced only in unusual situations; by the president of the board to having the evidence for 30 days prior to the board allowed him to conduct an independent investigation of the allegations.  The board members, by reviewing the evidence prior to the hearing, could prejudice the board members against the respondent.

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

He enlisted in the Regular Army on 29 April 1981 and had continuous service until his discharge.

On 1 July 1986, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for wrongfully having sexual intercourse with a married woman not his wife.

In August 1994, he was assigned to the Combat Training Committee, 3d Training Brigade, Fort Leonard Wood, MO as an instructor.

On 24 August 1995, the applicant was counseled that a few days earlier he attempted to establish an unprofessional relationship with an initial entry training soldier assigned to Company A, 2/10th Infantry by stating “Can I taste your lips” or words to that effect.  The applicant signed the counseling statement and concurred as to the accuracy of the counseling session.  The soldier who made this allegation was described by her company commander as a good soldier who had never been in trouble.

On 24 September 1995, a private trainee from Company D, 3/10th Infantry, Fort Leonard Wood, MO made a complaint to a Criminal Investigation Command (CID) special agent that the applicant approached her after a class in early September and asked her “What are the chances I might taste those lips of yours?  ”The soldier who made the allegation was described in the investigating officer’s report as facing a Chapter 11 discharge for discipline problems.

On 16 October 1995, the investigating officer determined the allegations were founded.  He found the two privates did not know each other, did not meet and had no chance to corroborate their stories with one another.  The allegations were almost identical in content, location and type of language the applicant used with them.

On 25 October 1995, the applicant’s commander recommended he be processed out of the Army under Chapter 14, Army Regulation 635-200.  The formal paperwork was initiated on 6 December 1995.  The reason for the proposed action was the applicant attempted to engage in a nonprofessional social relationship with two initial entry trainees.  The applicant was advised by counsel and requested consideration of his case by an administrative separation board, personal appearance before such a board, and consulting counsel and representation.  He did not submit a statement in his own behalf.

All commanders in the applicant’s chain of command recommended he receive an under other than honorable conditions discharge.

The administrative separation board members were appointed by letter on         10 January 1996 and the board was originally scheduled to be convened on       7 February 1996.  On 30 January 1996, the applicant requested a delay so additional witnesses and documents could be located.  The board was rescheduled for 6 March 1996.  Another delay was granted so a ruling could be made on the admissibility of the Article 15.  

Apparently, the president of the board was given the packet prior to the convening of the board.  

The administrative separation board was convened on 18 March 1996.



“I was surprised as to the allegation against…never gave me any indication whatsoever that he could do anything like this.

“I was very surprised.  From what I know of him and have observed of him at the club, it went completely against everything I believed of him.

“I believe…integrity is above reproach.  I believe that his word is his bond, at least it was to me.  …had a strong moral character.…It is way out of character for…I do not believe it at all.”

“I would automatically disbelieve the privates, based on …’s character and what I know of him.”

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

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

________  ________  ________  DENY APPLICATION




						Loren G. Harrell
						Director