MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 January 1999                   
	DOCKET NUMBER:   AC98-12338
                                              AR1998014473

	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. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Robert W. Garrett		Member	
	Ms. Deborah S. Jacobs		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: That his dishonorable discharge be upgraded to general under honorable conditions.

APPLICANT STATES:  That he entered the Army as a young man and worked very hard to be the best, and it was paying off until he made a devastating mistake that cost him everything.  He thinks about this mistake each day of his life.  He states further that while in confinement he began to reconstruct, educate, and plan a new life for himself.  He earned numerous certificates while in confinement and afterwards completed an associates degree in law enforcement and is currently working towards a bachelors degree in criminal justice.  He believes in the system of punishment and that punishment is good for retribution and deterrence.  He continues to strive to achieve a better life for himself and his family, but his potential is limited by an anchor of a dishonorable discharge.  He asks that the Board take into consideration his outstanding military record, letters from his employers, his time served in confinement, and his personal desires and goals for life, and grant him an upgrade on the basis of clemency.

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

He enlisted in the Army on 3 February 1984 for 3 years.  He successfully completed his initial training and served in a series of assignments both in the United States and overseas.  He attained the rank of staff sergeant on 20 February 1988.  In 1990 he was selected as a drill sergeant candidate and was assigned to Fort Leonard Wood, Missouri for training and duty as a drill sergeant.

On 19 March 1992 the applicant was charged with violation of the Uniform Code of Military Justice (UCMJ), Article 134 (one specification) for wrongfully having sexual intercourse with a woman not his wife; Article 81 (one specification) for conspiring to commit an offense under the UCMJ, to wit: violate a lawful general regulation by wrongfully engaging in a nonprofessional social relationship of a personal nature with a female trainee for the purpose of intimacy, and in order to effect the object of the conspiracy, directed the trainee to meet privately with another drill sergeant; Article 92 (four specifications) for wrongfully engaging in nonprofessional social relationships of a personal nature with female trainees and for wrongfully being cruel and oppressive toward and maltreating a male trainee by using profane, vulgar or obscene language in the presence of the trainee.

On 28 May 1992 the applicant was notified that he was suspended from drill sergeant duties and that his special duty assignment pay was terminated effective 4 March 1992.  The applicant acknowledged this suspension and submitted a rebuttal letter arguing that the effective date should have been the date of notification.

On 17 June 1992 the applicant’s commander initiated a bar to reenlistment based upon the pending general court-martial (GCM).  The applicant refused to make any election of rights or to sign the bar to reenlistment certificate.  It was approved by the appropriate authority on 29 June 1992.

On 30 July 1992 the applicant was charged with an additional violation of the UCMJ, Article 134, for wrongfully endeavoring to impede a criminal investigation by asking another sergeant to prepare a false statement.

The applicant appeared before a GCM and pleaded not guilty to all charges.  He was convicted of the offenses of wrongfully engaging in a nonprofessional social relationship of a personal nature with a female trainee (two specifications), of wrongfully being cruel and oppressive toward and maltreating a male trainee (one specification), and of wrongfully endeavoring to impede a criminal investigation (one specification).  He was sentenced to reduction to private (E-1), a forfeiture of all pay and allowances and to be confined for 2 years and a dishonorable discharge.

Only so much of the sentence as provided for dishonorable discharge, total forfeitures, confinement for 12 months and reduction to private E-1 was approved by the convening authority.

On 29 April 1993 the applicant completed his sentence to confinement and was involuntarily placed on excess leave effective 18 June 1993 for an indefinite period of time, pending appellate review of his case.

On 4 February 1994 the United States Army Court of Military Review performed its initial review of this case.  It considered the applicant’s contention that his civilian defense counsel was ineffective in virtually every aspect of his representation. It found that the applicant did not substantiate with any specific facts his assertions that his counsel’s conduct was defective.  It affirmed the findings and the sentence.

On 23 August 1994 the appropriate authority directed that the applicant be dishonorably discharged.  Accordingly, on 29 September 1994 the applicant was dishonorably discharged.  He completed 10 years, 2 months and 26 days of creditable active service and had 273 days of lost time due to confinement.

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.  The applicant’s trial by GCM was warranted by the gravity of the offenses charged.  His 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.

2.  As a drill instructor entrusted with the training and molding of young soldiers, and as an NCO of his rank and service, the applicant was expected to set an example.  His conduct, particularly involving trainees, was  inexcusable.

3.  The Board gives due consideration to the applicant’s overall quality of service and notes his desire to excel in the civilian community; however, neither is sufficiently mitigating to warrant upgrading his discharge.

4.  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