RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 December 2006
      DOCKET NUMBER:  AR20060004877


      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. G. E. Vandenberg              |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Donald W. Steenfott           |     |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 honorable.

2.  The applicant states, in effect, he made a mistake and would like to
have his discharge "overturned" so that he can receive military honors at
the time of his burial.  He still holds the military in high regard and
believes that in light of all he has lost he would like to have something
to show for his time served.  He believes the punishment was too harsh for
the charge that resulted in his separation, and asks that the letters of
recommendation be considered as evidence of his good post-service life.

3.  The applicant provides copies of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), four letters of recommendation, and
31 documents from his official military personnel file.

CONSIDERATION OF EVIDENCE:

1.  The statutory authority under which this Board was created (Title 10,
United States Code, section 1552, as amended) precludes any action by this
Board which would disturb the finality of a court-martial conviction.
Therefore, this case will be reviewed as a request for an upgrade of the
characterization of service.

2.  The records show the applicant entered active duty on 31 July 1984 and
reenlisted twice.

3.  The record contains no indication of any derogatory information or
negative factors prior to the charges that led to his general court-
martial.  Favorable information includes the award of an Army Commendation
Medal, three Army Achievement Medals, three Good Conduct Medals, and
several letters of appreciation or commendation.

4.  In November 1994 a female subordinate of the applicant notified their
chain of command that the applicant had "maltreated" her by having sexual
intercourse with her while she was intoxicated on 19 October 1994.

5.  Both an informal and a formal investigation under Army Regulation 15-6
were conducted that resulted in the case being forwarded for an Article
32(a), Uniform Code of Military Justice (UCMJ) hearing.

6.  On 7 June 1995 an Article 32(a), UCMJ hearing was held.  The findings
of that board resulted in sufficient evidence to warrant referral to a
general court-martial on the charges of rape and fraternization.

7.  During the applicant's court-martial, he admitted to having acted
improperly by having sexual intercourse with a subordinate whose judgment
and physical condition was severely impaired by her consumption of alcohol.

8.  On 13 June 1995, a general court-martial found the applicant not guilty
of rape but guilty of fraternization.  He was sentenced to total forfeiture
of all pay, confinement for one year, and to be discharged with a BCD.

9.  A petition for clemency was submitted on 15 September 1995.  In that
request the applicant outlined his service accomplishments and the effect
the sentence would have on his family.

10.  On 25 September 1995 the court-martial convening authority approved
the findings and sentence and, except for the part of the sentence
extending to a BCD, ordered it to be executed.

11.  The record of trial was properly forwarded to the United States Army
Court of Criminal Appeals for review with procedural and mitigating factors
being provided by the applicant's attorney.

12.  On 5 March 1996 the applicant acquiesced to being placed on
involuntary excess leave upon his release from custody on 21 March 1996.

13.  On 8 March 1996 the Army Court of Criminal Appeals affirmed the
finding of guilt and the sentence.

14.  The excess leave was approved on 20 May 1996 and the applicant
remained on excess leave until he was discharged.

15.  The applicant requested that his case be reviewed by the United States
Court of Appeals for the Armed Forces.

16.  The United States Court of Appeals for the Armed Forces denied the
applicant's request for review on 27 January 1997.



17.  With the provisions of Article 71 (c) having been complied with
Headquarters, US Army Armor Center and Fort Knox General Court-Martial
Order Number 185, dated 7 November 1997, directed that the applicant be
discharged with a BCD.

18.  The applicant was discharged with a BCD on 9 December 1997 with
12 years, 3 months, and 7 days of creditable active service, 569 days of
excess leave, and 282 days of lost time.

19.  The applicant provided four letters of recommendation as follows:

      a.  A retired master sergeant, who has known the applicant since
1985, describes the applicant's service as that of a model Soldier.

      b.  A retired chaplain, who has known the applicant since the mid
1980s, offers that during the period they served together the applicant
showed presence and promise.  He indicates the applicant has accepted and
learned from his mistakes.

      c.  A former supervisor indicates that the applicant displays
character and professionalism, initiative, and loyalty, and was a catalyst
to the department.

      d.  His wife, an active duty noncommissioned officer, who also served
with the applicant prior to their marriage, describes the applicant as
having been a role model for Soldiers.  She indicates he was always
professional in his dealings with other Soldiers, both on and off duty.
She states that his incarceration deprived him of being present when their
daughter was born and being able to make the military a career.  She
indicates that since his release he has been a perfect husband and father,
active with his church and community.  She indicates that the type of
discharge he has makes it difficult for him to find new positions when she
is transferred.

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and
regulations applicable at the time.  The character of the discharge is
commensurate with the charge for which the applicant was court-martialed.

2.  The applicant served honorably and with distinction during his first
two enlistments.  This service is reflected in the awards and decorations
he received prior to the incident that led to his court-martial and
discharge.  However, there is no current provision to separate the
characterization of two earlier periods of service from the third one.

3.  The applicant admitted, in his testimony at his court-martial, that he
had acted inappropriately when he had sexual intercourse with a subordinate
in direct violation of regulations and policy.

4.  While the applicant was found not guilty of the more serious charge of
rape, the nature of his charge of fraternization included the inappropriate
act of sexual intercourse with a subordinate.

5.  The Army cannot allow such superior/subordinate relationships to exist
as they most often result in a deterioration of discipline and adversely
affect morale.
6.  Further, even if the applicant had not been the other Soldier's
superior, he committed a severe lapse of judgment and seriously violated
the standards expected of a noncommissioned officer when he had sexual
intercourse with an intoxicated Soldier who had come to him seeking help.

7.  The Board notes the applicant’s post-service activities, however, these
activities are not so exceptionally meritorious as to outweigh the offense
that resulted in his discharge and do not contain sufficient evidence or
mitigating factors to support an upgrade of the applicant’s discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_LDS___  __PHM __  __DWS__  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.





                                  __Linda D. Simmons_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060004877                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061205                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19971209                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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