MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 February 1999                   
	DOCKET NUMBER:   AC98-11162
				   AR1998014049

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Carol Jo Suiter		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:  In effect, that his rank be restored to staff sergeant (E-6), he be considered for promotion to sergeant first class (E-7), his reentry (RE) code be changed to RE-1, and that the separation authority and narrative reason for his discharge be changed to secretarial authority/retirement.  He also requests that his court-martial record be removed from his official military personnel file (OMPF), be paid all back pay and allowances, and receive any awards and decorations due to him.

APPLICANT STATES: That the narrative reason for his discharge was improper because of the improprieties committed during the separation process and that he had ineffective counsel.  He states that to upgrade the charges of sexual harassment from nonjudical punishment to a special court-martial is in violation of the UCMJ and the 5th and 6th amendments of the U.S. Constitution.  He states that his accuser had no creditability and should have been charged with perjury.  He states that he was forced to be separated prior to his desired retirement date due to the Army’s retention control policy.  He also states that he suffered humiliation and lost self-respect as a direct result of the unfair and erroneous court-martial.  He states that the evidence presented was insufficient for a verdict of guilty.

COUNSEL CONTENDS:  That the military judge limited defense evidence by not allowing certain witnesses to testify.  The trial counsel peremptorily challenged  one of the two black members because the applicant was black and his accuser was white.  Counsel contends that documentary evidence was lost and the investigating officer was a female, pregnant, and unmarried.  Counsel also contends that the narrative reason for discharge was inequitable because the applicant was an excellent soldier with a previously unblemished record. 

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army on 23 April 1977 for a period of 4 years and through reenlistment remained on active duty until 28 April 1994.  He was awarded military occupational specialty 16P (Chaparral Crewman).  His highest rank attained was staff sergeant (E-6).  His awards include the Army Commendation Medal, the Army Achievement Medal with 1st oak leaf cluster, the Good Conduct Medal, 5th award, and the National Defense Service Medal.

The applicant served in assignments in the United States and overseas.  While assigned to Fort Hood, Texas an Army Regulation 15-6 investigation was conducted on 3 June 1993 concerning sexual harassment.  The applicant allegedly made sexual comments and gestures towards a subordinate female soldier, placing his hands on her hips, and placing his tongue in her ear.  The investigating officer concluded that the applicant’s assertions could not be substantiated, his demeanor was evasive, defensive, and supported the allegations of sexual harassment. The investigating officer concluded that the applicant’s behavior was clearly offensive, whether or not sexual in nature, and not appropriate for an NCO.  Additionally, the investigating officer also concluded that he violated Fort Hood Regulation 210-7, paragraph 2-8f (10) by soliciting sales for a water purifier.  The investigating officer recommended that the approving authority take appropriate administrative and/or disciplinary action against the applicant for sexual harassment and soliciting a water purifier.  The investigating officer also recommended that the applicant be reassigned to a different unit.

Court-martial charges were preferred against the applicant for cruelty and maltreatment towards a person subject to his orders between 1 and 15 May 1993 and on or about 24 May 1993, for committing an assault on an occasion between 1 May 1993 and 15 May 1993, and for committing an indecent assault on or about 24 May 1993 with intent to gratify his sexual desires.

The applicant plead not guilty to the charges and was convicted by a special court-martial on 19 November 1993 for cruelty and maltreatment towards a person subject to his orders and two specifications of assault.  He was sentenced to forfeiture of $721.00 pay per month for 2 months, and reduction to the rank of private first class (E-3).  The convening authority approved the sentence on 
21 January 1994.

On 18 March 1994 with more than 14 years of service and then serving in pay grade E-3, the applicant requested separation from the Army effective before the expiration of his enlistment (28 April 1994) due to his reaching his retention control point.

The request for discharge was approved by the appropriate authority and on 
28 April 1994 the applicant was separated with an honorable discharge by reason of completion of required service.  He had served 14 years, 8 months, and 26 days of total active service and was assigned a RE code of 3.

The applicant submitted a request to change the narrative reason of his discharge to the Army Discharge Review Board, and it was denied on 16 June 1997.

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

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

2.  The Board found no evidence that the applicant was offered or received nonjudicial punishment for charges of sexual harassment.

3.  The counsel’s contentions that the applicant received ineffective counsel, that the applicant’s accuser had no creditability, and should have been charged with perjury are not supported by the evidence of record or by the evidence submitted with the application.

4.  The applicant’s separation from the Army was as a direct result of his misconduct that led to a court-martial conviction and reduction in rank.  The Board determined that had the applicant demonstrated the professionalism and behavior of an NCO, his court-martial conviction, and eventual separation from the Army could have been avoided.

5.  The removal of a court-martial conviction from the applicant’s OMPF is not within the authority of this Board. 

6.  The Board found no evidence showing that the applicant was eligible to receive any additional awards or decorations either prior to or after his separation. 

7.  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 the aforementioned 

8. 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

____X____  ____X____  ____X____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC9811162	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990210	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A134.00	
2.		
3.		
4.		
5.		
6.