IN THE CASE OF:	  

		BOARD DATE:  23 July 2013

		DOCKET NUMBER:  AR20120021472 


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:

The applicant requests defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests upgrade of the applicant's under other than honorable conditions discharge to an honorable discharge.  Counsel further requests a personal appearance hearing should his initial request for discharge upgrade be denied.

2.  Counsel states:

	a.  on 6 June 2005, the applicant was convicted at a general court-martial of fraternization, indecent acts with another, and violation of a general order or regulation (curfew violation) while serving in Korea.  He was sentenced, pursuant to his plea, to a dismissal and 9 months confinement, reduced to 6 months confinement by the convening authority.

	b.  the applicant contends he was the victim of over-zealous prosecution and false accusations of assault that, although he was found not guilty of the charges, tainted the military judge's impression of him and resulted in an unduly harsh sentence.  The applicant had 8 years of exemplary service prior to his conviction and requests his discharge be upgraded to honorable to more accurately reflect his contribution to the military.

	c.  the applicant grew up in a military family as the son of a lieutenant colonel who served over 20 years as an infantry officer.  Like his father, the Army became his passion early in life and he always knew he would make the service his career.  As an infantry officer he amassed his credentials as a successful graduate of Airborne, Air Assault, and Ranger Schools, as well as the Infantry Officer Basic and Advanced Courses and Combined Arms Services Staff School.  He is the recipient of the Meritorious Service Medal and the Army Commendation Medal with Oak Leaf Cluster.  He has deployed twice, to Bosnia in 2002 and to Afghanistan in 2003.

	d.  he relocated to Korea in March 2004 and he quickly immersed himself in the Korean and American communities.

	e.  on 8 May 2004, he and two fellow officers (a captain and first lieutenant) spent the evening drinking in the local clubs.  The applicant was the designated driver and had not been drinking.  While driving home, one of the officers noticed a female acquaintance he had been socializing with earlier walking down the street.  He flagged her and another female down and offered them a ride.  They eagerly accepted.  En route to their quarters, conversation ensued about whether they would be able to make it back onto the installation prior to curfew.  It was then the officers realized the two women were enlisted Soldiers.  The officers did not want the enlisted females to get into trouble by missing curfew and all decided to retire at the captain's quarters until morning.  While at this officer's quarters, the applicant and one of the females, a 39-year old woman, became romantically involved, kissing and caressing each other in the hallway close to the bathroom.  The area was public, but secluded, with no other individuals present.

	f.  after a short time, they relocated to the first lieutenant's quarters, where the first lieutenant and a private first class (PFC) admittedly engaged in sexual intercourse.  The applicant and the female specialist (SPC) remained on the couch and engaged in foreplay.  At no time did the SPC object to the activity and she was at all times a willing and aggressive participant.  The next morning the applicant woke up to find the two women gone.  Later that day, the SPC, for reasons unbeknownst to anyone, made the decision to report to the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) that she had been taken advantage of the night before.  The applicant was interviewed by CID and admitted to engaging in consensual physical activity with the SPC.

	g.  while the investigation into possible misconduct was ongoing, the applicant had the misfortune to be the victim of a case of mistaken identity.  On 19 June 2004, only a few weeks after the incident with the SPC, he was misidentified as the perpetrator of a street assault on two service members, one male and one female.  The Caucasian female victim described a bald, tall, African-American 
male, of a heavy build wearing jeans and a white t-shirt as the perpetrator who had assaulted her and her boyfriend the weekend prior.  On the night in question, the applicant and several others were in suit and tie being inducted into the Masonic Lodge and all went out to the same gathering place afterwards.  Although the victim's description could match hundreds of African-American male Soldiers stationed in Korea, the government prosecution chose to pursue the allegations that he was the perpetrator, even though the offense happened at night in a poorly-lit area and any positive identification would be difficult as best.  The applicant was not bald, is not tall (5'7''), and he had an alibi that was verified by numerous people.

	h.  the government convened an Article 32 hearing on the charges of assault, communicating a threat, indecent assault, fraternization, and violating a general order or regulation by violating the curfew.  As is common, all charges were referred to a general court-martial.  Under state and Federal law, persons convicted of indecent assault are required to register as sex offenders for the rest of their lives, even if convicted at a military court-martial.  Hence, the applicant was faced with an impossible choice.  Roll the dice at a court-martial and risk being forever labeled as a sex offender, or plead guilty to a lesser offense in exchange for a plea agreement and cap on sentencing.

	i.  the applicant chose to plead guilty reasoning the military judge would see the case for what it was:  fraternization, consensual foreplay, and violating curfew.  These offenses are generally Article 15 level offenses.  The charges that precipitated the court-martial, the physical assault and communicating a threat, were dismissed by the government pursuant to the plea agreement.  Despite presenting numerous good character statements and having a pristine military record with no prior disciplinary actions, the military judge sentenced the applicant to the unconscionably harsh and inequitable sentence of a dismissal and 9 months confinement.

	j.  the applicant's civilian attorney made a plea for clemency arguing in part that the first lieutenant admitted to the command that he had engaged in the exact same actions as the applicant, yet received no punishment.  Numerous individuals, including a general officer, wrote statements on his behalf.  The convening authority reduced his confinement by three months.  The regional detention facility refused to acknowledge his grant of clemency and did not arrange for him to be placed on involuntary excess leave until two weeks after he should have been released.

	k.  after 8 years of stellar service, the applicant was dismissed from the service and received a DD Form 214 (Certificate of Release or Discharge from 
Active Duty) that lists his characterization of service as under other than honorable conditions.  He contends his intent on the night of the offense was to help the enlisted Soldiers avoid a curfew violation, and he ended up letting his ego get the better of him by engaging in physical foreplay with a SPC.  This does not, however, outweigh the rest of his military career and the sentence he received was unduly harsh and inconsistent given the non-malicious nature of the offenses.

	l.  the argument in this case is one of equity.  In deciding the impact of any offense it is important to consider a number of factors, including affect on good order, morale and discipline, damage to the victim, nature of the misconduct, the protection of society, likelihood of further bad acts, and the military record and character of the accused.  Consider that the scenario in which the applicant found himself on the evening of 8 May 2004 likely plays out with frequent regularity in the military despite the prohibition against fraternization.  It is evident from the numerous character statements the applicant is not a criminal and definitely not a sexual predator.

	m.  had the victim felt threatened, it is assumed a 39-year old woman knows how to leave an apartment and call a taxi or walk to post, even in a foreign country.  She also had the option of phoning the military police, a course of action which is reiterated and emphasized in every military "Prevention of Sexual Assault" training briefing.  In her sworn statement, she states she protested the physical activity, but was too drunk to take action.  However, one would argue that this does not ring true, given the exceptional amount of detail she remembered about the encounter.  The indecent assault charge is another area where it is evident the government did not believe they had a very good case.  There is no indication in the investigation of forensic evidence or credible corroboration that any assault took place.  A more likely scenario is that the SPC drank too much alcohol, had not intended to engage in foreplay with the applicant, feared retaliation from her husband, or regretted her actions and sought to reassign blame.  Whatever the reasoning, it appears the government did not pursue court-martial charges for the indecent assault until after allegations of the physical assault arose.

3.  Counsel further states:

	a.  pursuant to his plea agreement, the applicant was not required to plead to the assault or indecent assault, but rather pled guilty to the offense of indecent acts with another.  At the time of the 2004 offense, the elements of the offense required that the acts be "open and notorious" or reasonably expected to be viewed by the public.  It was the opinion of the presiding judge that this element 
was satisfied and amounted to an indecent exposure.  This is a stretch at best and it is questionable whether another military judge would have allowed such a plea.  Absent the element of fraternization, the physical acts of two consenting adults, engaging in foreplay in an empty hallway or on a living room couch is not "open and notorious" and is not against the law, even in the military.  To call this indecent conduct is to put numerous service members in the military at risk for court-martial.  Notwithstanding common sense, the military judge did accept the plea and the appellate court did not assign error.  This offense does not exist in the current version of the Uniform Code of Military Justice and has been replaced with the Article 120 offenses of indecent acts and indecent exposure, neither of which the above scenario appears to meet the elements and it is doubtful that the applicant would have been convicted of this offense today.

	b.  the government's persistence in going to trial even though there was little corroborated evidence forced the applicant to enter a plea of guilty, because the slim chance of conviction would have ruined the rest of the applicant's life and subjected him to substantial jail time.  This is stacking the deck and is indicative of an environment that values winning over justice.  The fact that the assault charges went before the military judge and were present on the charge sheet is especially problematic.  Although the military judge is bound by duty not to consider charges of which the accused has been found not guilty, and this was probably the rationale behind choosing a judge alone trial, the potential for prejudice merely in the presence of charges concerning allegations of violent crime is unquestionably great and cannot be ignored as an explanation for the out-of-proportion sentence.

	c.  any factor that might be aggravating enough to warrant confinement is absent in this case.  There is no evidence of an abuse of a superior-subordinate relationship.  The SPC was not a young and inexperienced Soldier, but a 39-year old, experienced and capable woman.  She was awake and alert while she and the applicant engaged in foreplay, and was an active participant.  The applicant did not lure or persuade the two women into a compromising situation, but merely drove them safely after the first lieutenant offered them a ride and a place to sleep to avoid getting into trouble for missing curfew.  The command's attitude that the indecent act, fraternization, and curfew violation charges were not serious offenses is evident in the fact that neither the first lieutenant, captain, SPC, nor the PFC received any punishment for committing the exact same offenses.  Lastly, the applicant's military career was stellar and gave no indication that he was a substandard performer or of questionable moral character.  Quite the contrary, his records describe him as above reproach and his character statements repeatedly focus on his charitable and generous nature.
	d.  there is no other reasonable conclusion that can be drawn in this case other than the command and the military judge's opinion of the applicant was irreparably tainted and prejudiced by the false allegations of assault and battery.  This incident and the allegations that arose is egregious and completely out of character for the applicant.  Although one of the victims was adamant that the applicant was the individual who threatened and assaulted her and her boyfriend, the overwhelming evidence placed him in another location where he was witnessed by numerous individuals.  The civilian defense counsel for the applicant requested an expert witness who would testify as to the difficulties with eyewitness identification, especially in cases where the victim and perpetrator are of different races.  Unfortunately, that witness was denied by the same military judge that sentenced the applicant.

	e.  while the applicant's conduct may have reflected poor judgment, his actions were not done with malice or intention to harm and did not deserve a court-martial conviction, dismissal, or confinement.

	f.  the applicant was an exemplary officer and has continued to strive for excellence since leaving the service.  He has a great potential to contribute to society and does not deserve the stigma of a discharge under other than honorable conditions.  There is substantial evidence presented and in the record that the applicant was sentenced inequitably.  He was sentenced not for the offenses he committed, but instead for offenses of which he was found not guilty and he has paid over and above what was necessary to either make an impression or send a message.  In his personal statement, he details the lengths he has gone to since separating from the service to overcome this adversity and attain a measure of success.  His drive and commitment to excellence are evidence in the many professional and personal endorsements he has received.  It is the rare individual who could continue to hold his head high and to lead after losing his military career, but the applicant believes strongly in his ability to continue to make a positive difference.  His contribution to the military as a combat veteran and leader should not be overshadowed by this unfortunate and uncharacteristic episode in his life.

4.  Counsel provides 8 enclosures outlined on the last page of his brief.

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.  The applicant was appointed as a second lieutenant in the U.S. Army Reserve on 24 July 1998 and he entered active duty on 22 August 1998.  He was promoted to captain on 1 March 2002.

3.  On 6 June 2005, he was convicted by a general court-martial of failing to obey a lawful general order (curfew violation), committing indecent acts with a female SPC (two specifications), and fraternization.  He was sentenced to be confined for 9 months and to be dismissed from the service.  On 15 September 2005, the convening authority approved only so much of the sentence as provided by confinement for 6 months and a dismissal.

4.  On 20 February 2007, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  On 28 June 2007, the U.S. Court of Appeals for the Armed Forces denied his petition for a grant of review.

5.  On 15 August 2007, the Assistant Secretary of the Army ordered the sentence to be executed.

6.  On 12 September 2007, the applicant was dismissed under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 5-17, due to a court-martial with an under other than honorable characterization of service.  He had completed 8 years, 7 months, and 11 days of creditable active service.

7.  He provides numerous character reference letters attesting to his good character.

8.  Army Regulation 600-8-24 prescribes policies and procedures governing transfer and discharge of Army officer personnel.

	a.  Paragraph 5-17 states an officer convicted and sentenced to dismissal as a result of general court-martial proceedings will be processed pending appellate review.  A Reserve Component officer may be released from active duty pending completion of the appellate review or placed on excess leave in lieu of release from active duty.
	b.  Paragraph 1-22a provides that an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty.

	c.  Paragraph 1-22b provides that an officer will normally receive an under honorable conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an Honorable discharge.

9.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U. S. Code, section 1552, the authority under which this Board acts, the ABCMR 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.

10.  The 2005 Edition of the Manual for Courts-Martial provides the maximum authorized punishment for indecent acts with another is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contention that the applicant was the victim of over-zealous prosecution and false accusations of assault that, although he was found not guilty of the charges, tainted the military judge's impression of him and resulted in an unduly harsh sentence relates to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.

2.  Counsel points out the applicant, pursuant to a plea agreement, pled guilty to the offense of indecent acts with another.  He contends the military judge sentenced the applicant to the unconscionably harsh and inequitable sentence of a dismissal and 9 months confinement.  However, the 2005 Edition of the Manual for Courts-Martial states that the maximum authorized punishment for indecent acts with another is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.


3.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  The character reference letters submitted on behalf of the applicant failed to show his discharge/dismissal was unjust and should be upgraded.

5.  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.

6.  His record of service, while serving as a captain included one general court-martial conviction for serious offenses (failing to obey a general order, committing indecent acts with a female SPC, and fraternization).  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

7.  Counsel's request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision of his case.  Therefore, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

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)                                         AR20120021472



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ABCMR Record of Proceedings (cont)                                         AR20120021472



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