RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 October 2006
      DOCKET NUMBER:   AR20060003247


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Melinda Darby                 |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. Ronald Gant                   |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his bad conduct discharge (BCD) be upgraded
to a general discharge.

2.  The applicant states that giving him a BCD hurts his chances of finding
a  good job or ever serving again in the military.  He goes on to state
that had he not been falsely accused of rape, he would not have been court-
martialed for adultery and the worst that would have happened is that
nonjudicial punishment (NJP) would have been imposed against him.  He
further states that his rights were violated by the Army by not giving him
a speedy trial and calling him back to his previous duty station after it
had been 120 days since they charged him.

3.  The applicant provides a copy of his court-martial order and his report
of separation (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  He was married at the time he initially enlisted in the Army National
Guard (ANG) in December 1996 for training as a fighting vehicle infantryman
and he continued to serve in the ANG until he enlisted in the Regular Army
in Jacksonville, Florida, on 5 May 1998, for a period of 3 years.  He was
assigned to Fort Stewart, Georgia and was advanced to the pay grade of E-3
on 1 September 1998 and to the pay grade of E-4 on 1 November 1999.  He was
subsequently transferred to Fort Carson, Colorado on 20 July 2000.

2.  On 20 May 2002, an investigation conducted by Criminal Investigation
Command (CID) concluded that there was probable cause to believe that the
applicant had committed the offense of Wrongful use of a Controlled
Substance, when on 25 February 2002, he provided a urine specimen which was
subsequently tested and found positive for the presence of cocaine.  The
applicant was advised of his rights and rendered a sworn statement denying
that he had ever used cocaine.  He asserted to his commander that he was
taking multiple medications that caused the positive results.  It appears
that the commander was willing to give him the benefit of the doubt in the
matter because no punishment was administered at that time.

3.  Although not fully explained, the applicant was promoted to the pay
grade of E-5 on 1 August 2002 and on 15 August 2002, he reenlisted for a
period of 4 years, assignment to Fort Huachuca, Arizona, and a selective
reenlistment bonus.

4.  On 5 November 2002, charges were preferred against the applicant for
the wrongful possession of a Schedule I controlled substance, Gamma-
Hydroxybuturate (GHB) (also known as a date-rape drug) on 23 October 2001,
for the wrongful use of cocaine between 19 February and 25 February 2002,
for the rape of a dependent wife of another Soldier on 23 October 2001, and
for wrongfully having intercourse with a woman not his wife on 23 October
2001.

5.  On 15 November 2002, an Article 32 hearing was conducted at Fort Carson
regarding the charges against the applicant.  The investigating officer
determined that there was probable cause to establish the elements of the
charges against the applicant and recommended that he be tried by a General
Court-martial.

6.  Information contained in the Record of Trial indicates that the
applicant was under a suspension of favorable personnel actions and his
assignment to Fort Huachuca was revoked by the Department of the Army.  The
available records do not provide an explanation; however, the applicant was
allowed to transfer to Fort Huachuca on 5 January and signed into housing
at Fort Huachuca on 24 January 2003 and into his unit on 2 February 2003.
It does not appear that his reassignment orders were revoked in a timely
manner.

7.  Officials at For Carson contacted officials at Fort Huachuca as early
as 7 February 2003 when it was discovered that he had been allowed
(incorrectly) to be transferred to Fort Huachuca.  Attempts to locate him
proved futile initially and the convening authority at Fort Carson
dismissed the charges without prejudice on 12 February 2003, apparently to
preserve the speedy trial rights of the applicant.

8.  The applicant’s presence at Fort Huachuca was subsequently ascertained
and on 11 April 2003, the charges were again preferred against the
applicant.  Fort Huachuca declined the opportunity to assume jurisdiction
in the matter and the applicant was returned to Fort Carson (in an attached
status) for trial by a general court-martial.

9.  On 20 May 2003, the Military Judge called the Article 39(a) session
(arraignment) to order.  The applicant was present with two defense
counselors as were the judge and the trial counselor.  The applicant was
advised of his rights regarding trial by jury or judge alone and he
deferred his answer on that issue and his pleas to the charges against him.
 The military judge advised that the court-martial would be convened on 30
June and 1 July 2003 and that forum, pleas and motions were due 16 June
2003, as well as the witness lists.

10.  On 19 June 2003, the Article 39a session was re-convened and the
applicant entered his plea of “Not Guilty” to the charges and
specifications against him.  He also elected to be tried by judge alone.
The judge asked if there were any motions and both the trial counsel and
defense counsel indicated that there were none.  The military judge
specifically inquired of the defense counsel if he had any kind of speedy
trial motion or anything like that? The defense counsel indicated “Not at
this time, ma’am”.

11.  On 30 June 2003, the General Court-Martial convened with the applicant
represented by a major and a captain.  Opening remarks were made by the
trial counsel and defense counsel and the first witness was called and
testified that he was in charge of collecting urine on the date the
applicant submitted his sample for testing and subsequently tested positive
for cocaine.  After testifying, the witness was temporarily excused.

12.  Before the judge could proceed, the defense counsel informed the judge
that he had a speedy trial motion.  The judge asked the defense counsel
when his motions were required to be submitted and he responded that they
were due 15 June.  He further explained that he had a tactical reason for
not submitting it on time.  The judge inquired if he knew he had a
potential speedy trial motion before the applicant was arraigned and the
defense counsel responded in the affirmative.  The defense counsel
explained his rationale for surprising the court with his motion and the
judge after directing the defense counsel to cite precedence in his
argument, called a recess that lasted in excess of an hour, while she and
trial counsel had the time to review the motion.  When the court-martial
reconvened a discussion ensued and eventually the judge denied defense’s
motion to dismiss charges based on the violation of the applicant’s speedy-
trial rights.

13.  At that time the defense counsel informed the judge that he desired to
enter a conditional plea to specification two of charge one – wrongful use
of cocaine.  The judge denied the defense counsel’s request to enter a
conditional plea.  After hearing testimony from the noncommissioned officer
who collected the applicant’s urine sample on 25 February 2002, the
applicant (through counsel) requested to change his plea to specification
two of wrongful use of cocaine, from not guilty to guilty.

14.  After being advised of his rights by the judge and having explained to
him that he forfeited his rights by a guilty plea, the applicant  entered
an unconditional guilty plea to wrongful use of cocaine.

15.  The applicant was advised by the judge that the maximum punishment he
could receive for that offense alone was reduction to the pay grade of E-1,
forfeiture of all pay and allowances, a dishonorable discharge and
confinement at hard labor for 5 years.  She further explained to the
applicant that if he continued with his plea of guilty, she would not issue
a ruling and no appellate court would be able to review her ruling to
decide whether she had ruled the right thing.  She advised the applicant
that he had a moral right to plead not guilty and to make the government
prove his guilt beyond a reasonable doubt.  The applicant continued to
assert that he was guilty and the judge accepted his plea. The applicant
maintained his not guilty pleas to the other charges and specifications.

16.  After hearing testimony from the victim, who denied the act was
consensual and others involved or associated with the trial, the applicant
testified and asserted that he did have sex with his neighbor (a dependent
wife of a Soldier deployed to Egypt) and that it was consensual sex, not
rape.  He also indicated that she had initiated the first move and that
both he and the victim were intoxicated at the time.  The act took place in
government quarters with the applicant’s family across the street at the
time.

17.  After hearing all of the testimony and reviewing the evidence
submitted, the judge found the applicant not guilty of specification one of
charge one (wrongful possession of GHB), and charge two (rape).  She found
him guilty of specification two of charge one (wrongful use of cocaine) and
charge three (adultery).  She advised the applicant that the maximum
punishment he could receive was confinement at hard labor for 6 years,
reduction to the pay grade of E-1, total forfeiture of pay and allowances
and a dishonorable discharge.  After hearing testimony from the applicant
and closing arguments from counsel, she sentenced the applicant to be
reduced to the pay grade of E-1 and to be discharged with a BCD.  The
convening authority approved the findings and sentence on 11 September
2003.  The applicant was placed on excess leave effective 30 September
2003, pending appellate review of his case.

18.  The applicant, through counsel, appealed to the United States Army
Court of Criminal Appeals (USACCA) asserting that the charges and
specifications should be set aside because the applicant’s right to a
speedy trial was violated by the government.  On 30 December 2004, the
USACCA affirmed the findings and sentence.

19.  On 10 March 2005, the applicant, through counsel, petitioned the The
United States Court of Appeals for the Armed Forces for grant of review of
the decision of the USACCA.  On 22 April 2005, the petition was denied.

20.  On 19 May 2005, orders were published at Fort Sill, Oklahoma directing
that unexecuted portion of the sentence pertaining to the BCD be executed.

21.  On 19 December 2005, the applicant was discharged pursuant to a duly
reviewed and affirmed court-martial conviction.  He had served 7 years, 7
months and 15 days of total active service.

22.  Title 10, United States Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that the Board is not
empowered to set aside a conviction.  Rather it is only empowered to change
the severity of the sentence imposed in the court-martial process and then
only if clemency is determined to be appropriate.  Clemency is an act of
mercy, or instance of leniency, to moderate the severity of the punishment
imposed.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.

2.  The type of discharge directed and the reasons therefore appear to be
appropriate considering the available facts of the case.

3.  The applicant's contentions have been noted; however, they are not
sufficiently mitigating to warrant relief when compared to the seriousness
of his misconduct.  The applicant was convicted of two offenses for which
he admitted guilt and while he may have received less punishment if he had
received nonjudicial punishment (NJP) separately for each offense, that was
decision of the commander at the time and the commander was within his
authority to prefer charges for multiple offenses if he so chose.

4.  It is also noted that at the time the applicant tested positive for
cocaine, he was not truthful with his commander regarding his use of
cocaine and he was able to convince the commander at that time that no
punishment was necessary. Therefore, the commander did not pursue
punishment for that offense at that time and then later preferred charges
for that offense along with other charges for misconduct.  Essentially, the
applicant caused the charge to be preferred through his own untruthfulness
and in all likelihood, would have had NJP imposed against him had he been
truthful at the time he was initially accused of the offense and most
likely would have received a much less punishment.

5.  Although the Board does not have the authority to disturb the finality
of a court-martial conviction, the Board does not find that the punishment
he received was too harsh when compared to the nature of his misconduct and
the circumstances of his case.  Additionally, given the complexity and
circumstances of his case, the Board does not find that his case was unduly
delayed by the government.  Accordingly, there is no basis to grant the
applicant clemency in the form of an upgrade of his discharge.

6.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MD __  __JR____  __RG___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  ______Melinda Darby______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003247                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061019                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |2005/12/19                              |
|DISCHARGE AUTHORITY     |AR 635-200, CH 4                        |
|DISCHARGE REASON        |GCM                                     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |675/a69.00                              |
|1.144.6800              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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