MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE:
         DOCKET NUMBER:

         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. Loren G. Harrell		Director
Mr. Ed Clark		Analyst

The following members, a quorum, were present:

Ms. June Hajjar		Chairperson
Mr. Robert W. Garrett		Member
Ms. Deborah S. Jacobs		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)

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APPLICANT REQUESTS: That his NCO Evaluation Report (NCOER) for the period covering February through August 1996 be removed from his official military personnel file (OMPF); and that he be reinstated to the drill sergeant program.

APPLICANT STATES: That the contested NCOER was issued and he was withdrawn from the drill sergeant program because he was cited for a civil felony charge; and that all charges against him were subsequently dismissed in a civil court.

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

He was serving as a senior drill sergeant in the rank of staff sergeant at Fort Sill, Oklahoma during the period of time in question. Born on 17 May 1961, he was 34 years old during the period of time in question.

The contested NCOER, covering the period February through August 1996, is a relief for cause report. It does not contain any entry indicating why the individual was relieved other than the comment “The rated NCO has been notified of the reason for the relief.” The document contains no adverse comments and, in essence, shows that the applicant met or exceeded the standards of a noncommissioned officer. In Part V, Overall Performance and Potential, he was rated “Among the Best” by his rater. His senior rater did not meet minimum qualifications and therefore made no entries.

A CID Report shows that the applicant had consensual sexual intercourse on numerous occasions with a 14 year old female who became pregnant and gave birth to a child. In a Sworn Statement, the female stated that when she met him she told him that she was 13 years old; that she had a birthday in January
1995 and that they began engaging in sexual intercourse during that month. A statement made by the mother of the female shows that she told the applicant that her daughter was 14 years old.

In a Sworn Statement, the applicant acknowledged that he had a relationship with the female but denied ever having sexual intercourse with her.

An American Red Cross document dated 15 May 1996 shows that a paternity test indicated that the applicant was the father of the aforementioned child. The document shows the statement “99.99 percent of falsely accused men would be excluded as the father by the above tests.”

The CID Report also shows, in various statements made by four females (ages 14, 14, 15,and16 at the time), that the applicant had assaulted a minor female by punching her in the stomach with a closed fist; that he engaged in consensual sexual intercourse with another minor (15-year old) female; and that he assaulted a minor female by grabbing her breast.

On 18 March 1996 the mother of the impregnated female signed a Sworn Statement in which she stated, in part, that the applicant had told her in a telephone conversation on 1 March 1996 that "if I could get the military to drop the charges, and that if I didn't press the issue any further the military would not do anything to him. He said if I did this he would take the action to the civilian side and pay child support." She further stated that the applicant had agreed to pay $250.00 per month in child support if she would provide documents so that payments could be made by the Defense Finance and Accounting Service; and that although her daughter would not marry the applicant, she believed that her daughter had again engaged in sexual relations with the applicant as she had stayed overnight at the applicant's house until 6:00 A.M. on 16 March 1996.

On 8 August 1996 the applicant’s battalion commander requested that the applicant be removed from the drill sergeant program “due to a civil misconduct investigation and filing of civil charges.” On 19 August 1996 the Commander, U.S. Army Field Artillery Training Center, Fort Sill, Oklahoma, notified the Commander, Total Army Personnel Command, that the applicant had been removed from the drill sergeant program.

There is no indication in the available records that the applicant was charged under the UCMJ with the aforementioned alleged offenses.

On 14 October 1998 the Board was advised (COPY ATTACHED) by the Enlisted Special Review Board (ESRB) that apparently because the applicant was pending civil court action for a more serious charge, second degree rape, and because of the applicant’s prior commendable service, military officials elected only to pursue administrative action in the case; that although the civil charge of second degree rape was dismissed, CID investigation documents support the rating officials determination of misconduct which was significant enough to warrant the appellant’s relief from drill sergeant duty; and that there is no basis to remove the contested NCOER from the applicant’s OMPF. Further detail is outlined in the attached advisory opinion and need not be reiterated.

On 20 November 1998 the applicant was provided a copy of advisory opinion and advised that he could submit any additional comments or rebuttal within
30 days. The applicant then submitted a memorandum in which he acknowledged that he was untruthful when he was questioned about his relationship with the minor female; that in an interview with his defense attorneys, the minor female wrote a statement indicating that she had three female friends "write statements against me to force me to pay child support;" that the minor female also admitted that she had lied to the applicant about her age and that she had a fake ID card to support her lie; and that the mother of the minor female wrote a statement saying that once she told the applicant her daughter's true age, he stopped seeing her and that she never requested that legal action be taken against him but rather that he be forced to pay child support. The applicant further wrote that after the minor female admitted that she had lied about her age; that the District Attorney dismissed all charges against him; and that that all parties involved refused to cooperate with the CID once he agreed to pay child support.

The applicant also submitted a copy of an Inspector General (IG) Action Request. That document shows that he contended at that time that his rights were violated because following his removal from the Drill Sergeants Program, he was not removed from his unit; and that he was required to perform miscellaneous duties involving trainees. The IG determined that his rights had not been violated.

The applicant also submitted documents titled Part I and Part II, respectively, which he contends represent transcripts of a telephone conversation, and a face to face conversation between him and the minor female whom he was accused of punching in the stomach, which purports to show that she [who previously, in a sworn statement, had described sex acts with the applicant in vivid detail] lied to the CID about having sexual relations with the applicant. Another document submitted by the applicant, which is untitled, appears to represent a transcript of a conversation between the applicant and the impregnated minor female (date not indicated) in which she alleges that she is not allowed to enter her home, and that she has been physically abused by her mother.

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, it is concluded:

1. The applicant, 34 years old at the time, engaged in an improper relationship with a 14-year old female that resulted in her pregnancy and the birth of a child. The evidence of record shows that during that period of time he also associated with friends of the female who were also minors. Accordingly, the applicant's contention that he was unaware at the time that the female whom he impregnated was a minor is neither reasonable nor logical.

2. The aforementioned improper relationship with a minor female while serving as a senior drill sergeant warranted both the issuance of the contested NCOER and his removal from the drill sergeant program.

3. The applicant’s contention, in effect, that because he was not convicted of a charge of second degree rape by a civil court the contested OER should be removed from his OMPF and he should be restored to drill sergeant status is not a convincing argument. The Army has the obligation to judge the available evidence and determine if the evidence warrants appropriate action. The evidence here clearly justifies the actions taken.

4. The foregoing is supported by the advisory opinion provided by the ESRB.

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

JH______ RWG___ DSJ_____ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC97-10726
SUFFIX
RECON	N/A
DATE BOARDED	1999 January 20
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	111.02
2.
3.
4.
5.
6.