MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            3 December 1998                  
	DOCKET NUMBER:   AC98-09870

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Roger W. Able		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)

APPLICANT REQUESTS:  Through counsel, that the applicant’s records be corrected to delete his bar to reenlistment and to show that he has had unbroken active service throughout his military career, and that he be given the pay and allowances this correction would necessitate.  Counsel also requests that the applicant’s records be corrected to give him the promotions he would have received if it hadn’t been for his unjust separation.  

APPLICANT STATES:  Through counsel, that the allegations of a female who was being processed by the applicant for enlistment was taken at face value due to the proximity of the incident to the Navy Tail Hook scandal and due to a tape recording of the applicant and his fellow recruiters joking with each other, jokes that were later taken as an admission of guilt.  Council contends that the female who made the allegation against the applicant was trying to get him to pay her child support for a child that wasn’t his.  The tape recording, which was taken secretly by a CID informant, was of no substance since the applicant and his fellow recruiters were only joking with each other.  The applicant was merely tired of being the focus of the banter in the group and said the things he did in an attempt to get the group to stop kidding him.  Counsel states that his attempts to obtain the recordings to have them analyzed proved fruitless, the tapes having been destroyed by the Government.  Counsel charges that federal court has held that using evidence against a person without allowing that person inspect that evidence is inequitable.  Counsel states that the female in question was lying when she said that the applicant fathered her child, as evidenced by the applicant’s submission to a lie detector test and a paternity test.

In support of his request the applicant’s counsel submits the polygraph test taken by the applicant wherein he answered “No” to the question “Did you really get [the female enlistment prospect] pregnant?” and his answer “Yes” to the question “Did [the female enlistment prospect] really threaten to cause trouble for you if you failed to pay her hush money?”

Counsel also submits a paternity test which shows that the applicant is not the father of the female enlistment prospect’s child.  He submits summarization’s of the tape recordings wherein the applicant made statements which were tantamount to admitting that he had sexual intercourse with the female enlistment prospect, and he submits sworn statements which were taken when the female enlistment prospect’s allegations were investigated.  In the female enlistment prospect’s statement she said that she had sex with the applicant on one occasion during which the condom which the applicant was wearing broke.  When she discovered she was pregnant and told the applicant, he told her that he had just got married.  She then asked him to pay her $400.00 a month in child support, but the applicant refused, stating that the child wasn’t his.  The applicant then agreed to pay her $80.00 and promised to send her $175.00 a month thereafter.  In the sworn statement from the applicant he denied ever having sex with the female enlistment prospect.
EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 16 December 1981, was awarded the military occupational specialties of cannon crewmember, concrete and asphalt equipment operator, and recruiting/retention NCO, and was promoted to pay grade E-5.

On 10 June 1994, while the applicant, a man married to the same woman since 3 May 1986, was performing duties as a production recruiter, his battalion commander initiated a bar to reenlistment against him.  The stated reason for that bar was a report of investigation dated 8 April 1994 which substantiated sexual misconduct between him and a female enlistment prospect.  Although the applicant submitted matters in his own behalf, maintaining his innocence of the allegation, the bar was approved.

Accordingly, on 15 August 1994 the applicant was honorably discharged at the expiration of his term of service.  He had 12 years and 8 months of active service.

The Manual for Courts-Martial, Article 134, Adultery, defines the offense as (1) That the accused wrongfully had sexual intercourse with a certain person; (2) That, at the time, the accused or the other person was married to someone else; and (3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.  The MCM lists the maximum allowable punishment for a conviction of this Article as being a dishonorable discharge, a forfeiture of all pay and allowances, and confinement for 1 year.

Army Regulation 601-280 prescribes the eligibility criteria and options available in the Army Reenlistment Program.  Chapter 6 of that regulation provides for barring from reenlistment individuals whose continued active duty is not in the best interest of the military service.  This chapter specifies that bars will be used when immediate administrative discharge from active service is not warranted.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant’s counsel’s primary focus appears to be on whether the applicant was responsible for getting the female enlistment prospect pregnant, not on whether he had sexual intercourse with her.

2.  Neither the paternity test nor the lie detector test indicate that the applicant did not have sexual intercourse with the female enlistment prospect.  The applicant’s bar was based on his having sexual intercourse with a female enlistment prospect, in violation of recruiting regulations and in violation of the UCMJ (adultery).
3.  The credibility of the female enlistment prospect has been tarnished by her false statement that the applicant was her child’s father and by her attempt to get the applicant to pay her child support.  However, her statement that the applicant agreed to pay her some form of child support, even though he did so while denying that the child was his, is indicative that although he may not have thought he was the child’s father for whatever reason, he had sexual intercourse with her.  Also indicative that sexual intercourse occurred between the applicant and the female enlistment prospect is the fact that she agreed to the paternity test.  She must have thought that there was at least a possibility that he was the father

4.  The investigation referenced in the applicant’s bar to reenlistment is not contained in his military records.  However, from the documentation submitted by the applicant’s counsel, it appears that their was sufficient evidence to warrant barring the applicant from reenlistment.

5.  It is noted that a bar to reenlistment is a subjective opinion of the applicable commander and is not subject to the rules of evidence applicable to a trial by court-martial.  Although the tape recording is no longer available for review by the applicant’s counsel, there is no evidence that it was not available when the applicant was barred from reenlisting.  In addition, the applicant and his counsel obviously have access to the transcripts of that tape recording. 

6.  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

__JNS___  __EW___  __RWA__  DENY APPLICATION

                                                              John N. Slone             
						Loren G. Harrell
						Director