PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            27 June 2002
	DOCKET NUMBER:   AR2001062207

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Richard T. Dunbar		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
            records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that all punishment imposed by a general court-martial (GCM), be set aside.

3.  The applicant states, in effect, that he was wrongfully convicted of raping a fellow basic trainee, despite the fact that there was substantial doubt as to his guilt to the crime of rape.  He further states that despite his defense counsel’s objections, the military judge improperly gave instructions that were tailored to the facts testified to by the government’s chief witness but misstated the law regarding rape, to the court-martial panel.  He goes on to state that evidence was presented to show that the alleged victim’s credibility was questionable, yet the Army Court of Criminal Appeals ignored the weight of evidence and made findings of fact that not only failed to accurately assess the victim’s credibility but also failed to reflect the factors it weighed in coming to its conclusion.  He also states that he believes that some factors that led to his conviction was that the incident that led to his conviction occurred on the day that information about the sexual misconduct at Aberdeen Proving Ground (APG) was released, which created tensions at all training installations and the fact that he was black and the alleged victim was white created racial overtones that would not have gone to trial had the races been reversed.  The incident would have been seen for what it really was, two trainees engaged in consensual sex play.  He continues by stating that of his 3-year sentence to confinement, he was given parole just after serving a little more than a year.  The fact that he was given parole so quickly may indicate that the Army Clemency and Parole Board had doubts about the appropriateness of punishment in his case.  While he understands that the Board does not have the power to set aside his conviction, setting aside the punishment may make it easier for employers and others to understand what really happened.

4.  The applicant’s military records, to include the Record of Trial (ROT), show that the applicant, who is a black male from the island of Grenada, enlisted on 11 September 1996, for a period of 3 years and training as a small arms/artillery repairer.  He was transferred to Fort Jackson, South Carolina to undergo his basic combat training.

5.  On 22 November 1996, charges were preferred against the applicant for raping a female trainee in his unit on 7 November 1996, and for violating a lawful regulation by wrongfully kissing, touching, and engaging in sexual intercourse with a female soldier-in-training (SIT) on 7 November 1996.

6.  Contrary to his pleas, the applicant was convicted of both charges by a general court-martial on 12 March 1997, and was sentenced to confinement for 3 years, reduction to the pay grade of E-1, forfeiture of all pay and allowances and a bad conduct discharge.

7.  A review of the ROT in the applicant’s case shows that during the period of 6 to 8 November 1996, the applicant’s unit was participating in a 3-day field training exercise (FTX) that was a training requirement.  The applicant was paired off with a black male battle buddy with whom he shared a pup tent.  The alleged victim (a white female) was paired off with a black female and they occupied the tent next to the applicant’s tent, approximately two feet away.  After returning from training on the afternoon of 7 November 1996, the two females removed their battle dress uniform (BDU) tops and were sitting in front of their tent in their bras. The black female made a comment to the applicant and his battle buddy that they had better look now because they would not get another chance, or words to that effect.  As the evening progressed, the two couples paired off as male and female, sitting/laying on the ground, eating and talking, and the applicant had his head resting on the white female’s lap while she was removing camouflage from his face with a baby wipe.  It should also be noted that the black female admitted that she and the white female had decided that the teams would integrate/split up and pair off with the males.  The other couple eventually moved into the male’s tent and began to engage in kissing, petting, etc (they later admitted to these acts but not to sexual intercourse).  Shortly thereafter, the alleged victim went into her tent and subsequently invited the applicant into her tent.  The couples occupied the tents for about 30 minutes before going back to their respective tents.  Upon returning to her tent, the black female noticed that the victim appeared upset, but she never said or indicated that she had been raped.  She indicated to her battle buddy that she was asleep when the applicant came in and jumped her.  The next day, the alleged victim summoned the platoon guide and indicated that she had a problem.  The platoon guide testified that she did not seem upset, traumatized, or manifested any signs that something traumatic had occurred.  The victim reported the incident to her drill sergeant at the FTX site and stated that the applicant had jumped her.  After returning to the barracks, she changed her description of what had happened and described it as an assault.   

8.  She was rushed to the hospital where she was examined by the head of the OBY/GYN Clinic (a colonel) who found no evidence of trauma, vaginal stress, marks, bruising, cuts or anything else indicative of rape.  The doctor’s opinion, though inadmissible in court, was that it appears that she was sexually developed, that she was not a virgin and that she was not raped.

9.  The victim’s story appears to vary throughout the whole period (from time of incident to trial by court-martial) and the defense repeatedly attacked the inconsistencies.  The victim was allegedly raped within two feet of her battle buddy who was making out in the pup tent next door (the applicant’s tent) when the alleged rape occurred.  No one heard any signs of a scuffle, a struggle or anything related to a rape.  The female battle buddy did hear her say “Get the fuck off me!”, but presumed, based on the tone of voice that it was an annoyance type of comment and not a distress comment.  The victim initially claimed to her battle buddy that she was asleep when the applicant entered the tent and commenced to assault her against her wishes.  She claimed that she continually told him “no”, yet two people, two feet away, could not hear her.  She claimed that the applicant held her down, unbuttoned her pants and unbuckled her belt and pulled her pants down to her thighs and entered her.  In a subsequent version, she claimed that her clothes were so loose that he simply pulled/slid them down to her thighs.  When she complained that it hurt, the applicant pulled out and ejaculated all over her.  He then used some of her baby wipes to clean himself up and walked out of the tent.  She then cleaned herself up and buried the baby wipes in a hole she dug in the corner of the tent.  She reported the incident the next day and from that point on, her stories began to change.  She then indicated that she was sitting in her tent eating when the applicant asked her to talk about fire-guard and she invited him into her tent.  Once he was in her tent, she claims that that he was all over her and was kissing her and she told him to stop.  He initially did and then started again.  In another version, she claims that she was laying down when he entered the tent and jumped her.  

10.  The applicant’s version (not admitted during the trial) was essentially that the four of them were supposed to come to an agreement about pulling fire-guard duties and had not done so.  He stuck his head in her tent to ask her about it.  He specifically stayed outside of the tent and she told him to come in.  He asked her if she was sure and she replied in the affirmative.  Once in the tent they discussed a variety of subjects and then it began to turn to matters of a personal nature.  While they were talking she began massaging him and he reciprocated.  The subject of sex was never discussed; it just started to happen, kissing, touching, etc.  She made the comment to him that he was a big guy with needs who had been in training and he agreed.  At that point she gave him a “hand job” while he was laying on his back.  He felt that it would not work and put his penis back in his pants.  He sat up again and they started talking again.  She then removed her BDU top and laid down.  They began kissing again and in all the excitement, he ejaculated prematurely all over her and she hollered for him to get the fuck off of her.  He asked her for a baby wipe to clean up and she obliged.  He then departed through the open flap of the tent. 

11.  During the course of the trial by court-martial, the defense presented evidence to show that the applicant had previously engaged in oral sex as well as other sexual activities with a black private she met at the MEPS Station before shipping out to basic training.  This evidence went to credibility of her previous testimony where she asserted that she was a virgin.

12.  It is also noted throughout the ROT that the defense, from day one, continued to raise the issues of undue command influence based on the extensive media attention and comments by senior Army officials regarding the scandal at APG.  The defense also continually raised the issue that the three other members involved, who admitted that they had knowingly violated the Fort Jackson Regulation regarding sexual contact, had not been charged or punished. 

13.  While in confinement, the applicant completed the Victim Impact Class but was deemed ineligible to attend the Sexual Offender Rehabilitation Program because he denied committing rape.  The applicant was granted parole by the Army Clemency and Parole Board (ACPB) on 17 April 1998 and was issued a BCD on 9 March 2001.  The ACPB voting members granted him parole based on time served but did not upgrade his discharge. 

14.  The applicant’s counsel appealed his case to the United States Army Court of Criminal Appeals contending that the evidence of record was not legally or factually sufficient to support a finding of rape, that the government failed to prove beyond a reasonable doubt that the applicant was not mistaken as to the alleged victim’s lack of consent, the military judge committed prejudicial error when he denied a defense motion to produce a witness whose testimony would have challenged the conclusion made by the alleged victim’s psychiatrist regarding PTSD, and the military judge erred to the prejudice of the applicant when he gave a constructive force instruction as to the rape charge over defense counsel’s objection when constructive force was not raised by the evidence.  Counsel also contended that the case should be dismissed because of unlawful command influence and unfair pre-trial publicity.  At the very time the applicant’s alleged offenses were being investigated and tried, the Army was consumed by scandal involving the drill sergeants at APG.  The applicant’s case was caught up in the maelstrom of publicity that attached itself to the APG cases and the comments by senior Army leadership that there would be no tolerance for sexual misconduct targeted at trainees.  As a result, it drove the prosecution of the facts and made a fair assessment of all circumstances in his case impossible.  

15.  The Appeals Court opined in regards to the issue of lack of evidence to support a finding of rape and reasonable doubt as to consent, that the fact that the applicant said “no” repeatedly and told him to get off her, that the evidence supported the findings.  In regards to the issue that the judge erred in denying the defense motion to produce a witness that could challenge the psychiatrist’s diagnosis, the court opined that the witness in question did not possess knowledge of a sufficient regularity to establish the necessary foundation to testify as to the habits of the victim.  The court deemed the judge’s action as harmless and the issue without merit.  In regards to the issue of the judge giving instructions on constructive force when it was not raised by the evidence, the court opined that the victim’s repeatedly telling the applicant “no” and “get off me”, his restraining her while he removed her pants, and the fact that she said it hurt, created a reasonable belief that resistance would be futile.  The court found the issue without merit.  The Court denied the appeal and affirmed the findings and sentence of the court-martial.

16.  The applicant’s counsel appealed the decision of the United States Army Court of Criminal Appeals to the United States Court of Appeals of the Armed Forces.  That Court denied the motion for a review of the case.  Counsel again submitted a request for reconsideration of review, which was also denied. 

17.  A review of the investigation conducted under Article 32, Manual for    Courts-Martial, shows that the defense counsel objected to the timing and manner in which the hearing was being held.  He provided his objection in writing (based on direction from the investigating officer) stating that the accused was charged with an offense that occurred on 7 November 1996, requested counsel on 9 November 1996, had charges read to him on 22 November 1996; but was not produced to the Trial Defense Service (TDS) for counsel until 3 December 1996. He objected to the prosecution’s explanation that it was an oversight or unit screw-up.  He went on to state that the evidence gathered shows that the government was gearing up for prosecution prior to the company graduating from basic training and explains that this was the first and only rape case in which the TDS was denied the opportunity to investigate and acquire information before it was forever lost.  All previous cases had been properly and timely investigated by TDS and had resulted in determinations of consensual sex, rather than rape, which resulted in a more favorable outcome of the Article 32 investigation.  The defense objected to evidence that was withheld and the manner in which it was presented.  He also stated that it was his opinion at the time (16 November 1996) that the government would try and drive the charges through the system by Thursday, before discovery could be made, based on the comments made by the investigating officer about what was going on at APG.  He contended that partiality on the part of the government existed in the proceedings.

18.  The judge in the trial by court-martial reviewed the defense’s objections and concluded that in the two rape cases that had occurred in the past two years, both cases were dismissed after the Article 32 investigation based on recommendations from the investigating officers that there was insufficient evidence.  In regards to the allegation of vindictive prosecution, the judge opined that the applicant’s case was different from the other members who had not been charged because he was charged with rape.  He denied the motion to dismiss.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a soldier will be given a BCD pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

20.  Court-Martial convictions stand as adjudged or modified by appeal through the judiciary process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Board 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.

21.  The Army leadership made the allegations of sexual misconduct surfaced by the news media public on 7 November 1996 (same day as the alleged incident) and issued subsequent policies and directed investigations from that point on.  The news media coverage made by both verbal and written communications was very extensive and continued on a daily basis.

22.  Fort Jackson Regulation 600-3 (Prohibited Practices and Illegal and Unprofessional Associations) provides that the regulation is punitive in nature.
It also provides, in pertinent part, unprofessional associations between soldiers in training (SIT) is punishable under the Uniform Code of Military Justice (UCMJ) or any applicable Federal criminal statutes.

CONCLUSIONS:

1.  The applicant was properly discharged pursuant to a sentence by a general court-martial with no indication of any violations of any of the applicant’s rights.

2.  The statutory authority under which the Board was created (Title 10, U.S. Code, section 1552, as amended) precludes any action by this Board, which would disturb the finality of a court-martial conviction.  Although it is not within the authority of this Board to re-try a case, determine innocence or guilt, or to challenge a conviction that has been duly appealed, the Board does have the authority to review such cases to determine if equity and justice have been served.

3.  In reviewing the extensive evidence in this case, the Board has doubts regarding the equity and justice that was applied to the applicant’s case.

4.  While the Board understands why the applicant was tried for a violation of the Fort Jackson Regulation in addition to the charge of rape, it is not at all clear why the remaining three participants, or at least two of them, who were involved in like misconduct, did not receive any punishment for the same offense, when they have admitted to doing so.  Like the applicant, the Board finds that his being punished for an offense for which others admitted to committing, is in essence, unfair and inequitable. 

5.  Respecting the finding of the court-martial that the applicant did engage in intercourse with the victim without her consent, the board believes that the only force established by the evidence was the minimal force required by the law, that is, that force necessary for the penis to penetrate the vagina.  The Board notes that contrary to the argument of the prosecutor at court-martial, the only verbal statement by the victim during the incident that was confirmed by the witness in the tent immediately adjacent to the scene of the assault was “get the fuck off of me,” or words to that effect.  The victim’s battle buddy testified that at the time, that statement did not strike her as a cry of distress, but rather struck her as a complaint.  The applicant, in a sworn statement admitted into evidence at trial, indicated that statement was a complaint that he had ejaculated prematurely.  No struggle was heard or observed.  There was no violence in evidence, nor was there evidence of constructive force, such as intimidation or coercion. 

6.  The Board notes that both the applicant and victim engaged in mutual behavior that can only be described as flirtatious.  The victim held the applicant’s head in her lap; she removed the applicant’s camouflage paint from his face; she together with her female battle-buddy, decided to pair off with the applicant and his male battle-buddy; she and the applicant entered the tent assigned to her and her battle-buddy, while her battle-buddy entered the other tent with her partner, the applicant’s battle-buddy.  None of these mutual actions had any purpose other than to establish physical contact and an opportunity for both the applicant and the victim to engage in romantic, if not sexual activity.

7.  The Board also notes that the applicant, native to the West Indies, possessed poor English skills and had only recently arrived in the United States at the time of the offense, compounding miscommunication between the applicant and the victim and complicating his defense at trial.

8.  While these facts and other circumstances surrounding the incident do not arise to a mistake of fact that would establish a complete defense to the charge, they do indicate that the culpability of the applicant, and the gravity of this particular offense, was not commensurate with the adjudged BCD.  Accordingly, the Board believes that a general discharge should be substituted for the BCD discharge.

9.  Accordingly, the Board sets aside only that portion of his sentence by a GCM as pertains to a BCD.

10.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the punishment imposed by a GCM which directed that the individual concerned be discharged with a BCD, is set aside and by showing that he was discharged under honorable conditions on 9 March 2001 and was issued a General Discharge Certificate in lieu of the BCD now held by him. 

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

________  __inw___  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

___kan__  ________  __rtd____  DENY APPLICATION

		__Irene N. Wheelwright___
		        CHAIRPERSON

INDEX

CASE ID	AR2001062207	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/07/22	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	2001/03/09	
DISCHARGE AUTHORITY	gcm . . . . .  	
DISCHARGE REASON	Gcm	
BOARD DECISION	Denied (2-1)	
REVIEW AUTHORITY		
ISSUES         1.  675	144.6800/a68.00	
2.		
3.		
4.		
5.		
6.