IN THE CASE OF:	  

		BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20120007675 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his character of service and reinstatement in an active duty status.  He also requests reinstatement on the promotion list and a promotion with retroactive pay and allowances. 

2.  The applicant states he was a dedicated Army officer with over 17 years of service.  He disagrees with the findings of the general court-martial conviction and entry of negative comments about his performance.  General court-martial officers ignored the U.S. Army Reserve (USAR) provision that allows for certain types of relationships and inequitably applied regulations to him that were not applied to other Soldiers in the same situation.  During his court-martial process one member of the prosecution team was having an ongoing relationship with an enlisted Soldier and no action was taken against either of these individuals.  

3.  The applicant provides copies the same documents utilized at the time of his court-martial and/or Show Cause Board including his:

* Officer Elimination Board proceedings, decision, and rebuttal
* General court-martial proceedings, orders, and related appeal
* Ad Hoc Review Board proceedings and decision
* Orders, award certificates, awards, decorations, and letters of appreciation
* Personnel Qualification Record (Commissioned Officer)
* Service School Academic Reports
* Two newspaper articles
* Letters of support utilized during the general court-martial appeal

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 20 August 2007, the applicant, a prior enlisted sergeant first class, was commissioned a USAR second lieutenant.  He was serving on active duty as a first lieutenant at the time of the incident that ultimately led to his discharge.

3.  On 13 August 2010, the applicant and a USAR enlisted Soldier, Sergeant (SGT) R____, reportedly had dinner, drank alcoholic beverages, and engaged in sexual activity.  The available evidence does not clearly identify SGT R____'s status at the time of this date or whether or not she and the applicant were then or subsequently assigned to the same command. 

4.  On 4 October 2010, based on the above alleged sexual activity general court-martial charges were preferred against the applicant for fraternization, assault, and sodomy while SGT R____ was substantially impaired by alcohol.  

5.  On 23 February 2011, a general court-martial found the applicant not guilty of the sexual assault and sodomy charges but did find him guilty on the fraternization charge.  The adjudged sentence was a reprimand that was to be placed in his permanent file, a forfeiture of $2,570 pay for 3 months, and 75 days in confinement.

6.  It is reported that during his court-martial testimony the applicant stated he believed SGT R____ (referred to as Ms. R____ in his testimony) was a civilian when he met her at a sporting event prior to their date.  He stated civilians routinely show up in uniform to Reserve units before they have been accepted into Reserve troop program units.  He remembered Ms. R____ and her recruiter asking him to sign a letter of acceptance, and he refused because he was not the unit commander.  He further testified that he was under the impression that 
SGT R____ would not be accepted into the unit due to her inability to pass an Army Physical Fitness Test.  He believes the reason she accused him of rape was out of revenge for telling her this.

7.  On 6 April 2011, his command initiated elimination actions for wrongful fraternization with an enlisted Soldier in his unit and complaints of loud music and loud sexual sounds at his military quarters.  At this time it was recommended that he be discharged under other than honorable conditions.

8.  U.S. Army Human Resources Command (HRC) Orders B-07-105296, dated 26 July 2011, show the applicant was selected for promotion to captain with an effective date of 1 August 2011.  These orders were revoked on 22 August 2011 following the imposition of a suspension of favorable personnel actions (FLAG) based on the applicant's court-martial action.

9.  On 19 September 2011, the Office of the Judge Advocate General, Washington, D.C. notified the applicant that they had completed the appellate review of his general court-martial and found it to contain sufficient legal and competent evidence to support the findings of guilty and the sentence beyond a reasonable doubt.  

10.  A Memorandum for Record from the Office of The Staff Judge Advocate, Military Justice Division, Fort Leonard Wood, dated 16 November 2010, states his "entire chain of command, both Reserve and active components, recommend that he be administratively separated from the U.S. Army under the provisions of Army Regulation 600-8-24, paragraphs 4-2b and 4-2c, due to conduct unbecoming of an officer and conviction by court- martial.  The chain of command also recommended that he receive a general characterization of service.

11.  On 2 December 2011, following a Show Cause Board, the commanding general forwarded the recommendation for elimination to HRC recommending that the applicant be separated with a general discharge.

12.  On 6 February 2012, the Deputy Assistant Secretary of the Army (Review Boards) approved the Department of the Army Ad Hoc Review Board recommendation and directed that the applicant be issued a general discharged.

13.  Throughout the entire processing from court-martial to discharge, the applicant and his counsel contended that no improper relationship existed between the applicant and SGT R____ because SGT R____ was not on active duty.  They averred that regulations require both service members to be on active duty for a valid finding of wrongful fraternization between Reserve personnel.  

14.  Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 4 states that elimination action may be or will be initiated for among other reasons an act of personal misconduct and/or conviction by court-martial.  

15.  Army Regulation 600-20 (Army Command Policy) prescribes the policy and responsibility of command, which includes well-being of the force, military and personal discipline and conduct, the Army Equal Opportunity Program, Prevention of Sexual Harassment, and the Army Sexual Assault Prevention and Response Program.  

	a.  Subparagraph 4-14 c(2) states that dating, sharing living accommodations other than those directed by operational requirements, and intimate or sexual relationships between officers and enlisted personnel are prohibited.  

	b.  Subparagraph 4-14 c(2)(c) states personal relationships between members of the Army Reserve, when the relationship primarily exists due to civilian acquaintanceships, are permitted, unless the individuals are on active duty (other than active duty training) or serving as a dual status military technician.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was found guilty of fraternization by a court-martial.  Based on that court-martial a FLAG was properly initiated against him.  Due to the imposition of this FLAG the applicant was properly removed from the promotion list.  

2.  The applicant contends his relationships with SGT R_____ was based primarily on a civilian acquaintanceship and as such he was exempt from the general prohibition against dating between officers and enlisted personnel. 

3.  However, the applicant was serving on active duty when he met SGT R____.  By his own testimony, prior to their date he was aware that SGT R____ was applying for a position in the same unit to which he was attached.  This belies both the contention that there would not have been a superior/subordinate relationship and that the relationship was due primarily to a civilian acquaintanceship.  

4.  The findings that the fraternization was improper are supported by not just the court-martial conviction, and the Show Cause Board, but also by the Ad Hoc Review Board.
5.  Whether or not one of the prosecutors at his court-martial was also guilty of fraternization has no bearing on his case.  

6.  The applicant's career was filled with numerous commendable actions as documented by his awards, decorations, letters of commendation and appreciation.  He was highly thought of by many of his superiors and contemporaries as noted by the letters of support.  The applicant and all Americans should be justifiably proud of his service.  It is reasonable to believe that this is the reason he received a general discharge in lieu of an under other than honorable conditions discharge. 

7.  However, without a reversal of the finding of fraternization there is no justification for granting any of the applicant's requests.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  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.



      _______ _   __X_____   ___
               CHAIRPERSON
       
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20120007675



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ABCMR Record of Proceedings (cont)                                         AR20120007675



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