PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            20 November 2003  
	DOCKET NUMBER:   AR2003084294

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn Langston		Chairperson	
	Ms. Linda Simmons		Member	
	Mr. Robert Duecaster		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 his discharge be further upgraded to fully honorable and that his reentry (RE) code be changed to allow him to reenlist.

3.  The applicant states that he feels the media at the time had a lot of impact on his case because of the sexual harassment cases against other personnel in the Army.  He provides a letter of support from his father.  His father states that his son had a buddy who got involved with a married woman.  That woman was going to split up with her husband.  His son and the buddy went to her apartment and invited her to go to a club and dance for a while.  His son and the buddy were both under age so she bought the liquor for them.  She got drunk and they all went back to her apartment.  She took her clothes off and invited his son to join her and the buddy.  She had sex with both of them.  She and other women hung out in the barracks all the time laying around with all the soldiers who were willing.  Two months later, she and her husband talked about getting back together.  Her husband found out she had sex with his son and the buddy.  She then claimed she got drunk and they raped her.  When Criminal Investigation Command (CID) agents called his son and the buddy in for questioning, the buddy asked for a lawyer.  CID refused to let him have one.  No doctor examined the woman at the time she had sex with his son and the buddy and there were no marks of any kind on her to show forceable rape.

4.  The applicant's father further states that with the sex scandals going on at the time, the military was making examples out of soldiers who were involved with married women.  Both boys were guilty of rape before they ever went to trial.  The members of the jury were only interested in getting through the trial.  Every time the jury left the room, the judge would go into the same room with them and you could hear them laughing and talking about the case.  He thinks the judge was instrumental in convicting the boys.  He states he asked the defense attorney to question the judge about his behavior with the jurors.  The judge said he did not discuss the case but that was a bunch of hogwash.  The defense attorney advised him not to bring a civilian lawyer in to represent his son.  He thinks they were given bad advice.  His son was sentenced to a dishonorable discharge and 8 years confinement, but all but 3 years were suspended.  Eleven months later, the parole board released both boys due to the fact the Army did not have grounds to hold them and they should never have been locked up.  His son's discharge was upgraded to general.  He is still a convicted felon of rape, however, and has to register where he lives.  This is a travesty of justice.  His son should be cleared of the charges.

5.  The applicant’s military records show that he enlisted in the Regular Army on 19 October 1994 for 3 years.  He completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He was promoted to Private First Class, E-3 on 19 October 1995.

6.  On 17 March 1997, the applicant was convicted by a general court-martial of rape, forcible sodomy without consent, and adultery.  His adjudged sentence was a reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 3 years, and a dishonorable discharge.  The convening authority approved the sentence and ordered it, except for the dishonorable discharge, to be executed.

7.  The applicant was placed in confinement on 17 March 1997.

8.  After the trial, the applicant requested clemency in the matter of the term of confinement.  He stated he was not sorry about the outcome of the trial but he was sorry for what he did.  He let his body take over with little respect for the woman's ability to act responsibly.  He had a good record during his confinement. He never did anything like that before and he did not plan on repeating his actions.  

9.  The applicant's case was appealed on three issues:  (1) whether the evidence was legally sufficient to support the findings that the applicant committed rape or forcible sodomy; (2) whether the military judge committed plain error when he erroneously gave instructions that integrated the concept of intoxication with sleep and unconsciousness and misstated the concept of understanding as it related to consent; and (3) whether the military judge committed plain error by failing to define the law of consent and intoxication properly for the members, especially where the military judge failed to inform the members that the apparent legal conclusions contained in the statement given to the CID agent were erroneous and misleading.

10.  The U. S. Court of Appeals for the Armed Forces granted the applicant's petition for review on two issues:  (1) whether the military judge erred as a matter of law by failing to properly define the law of "consent" and "intoxication" for the members, where the military judge also failed to inform the members that the legal conclusions used by the CID agent during the applicant's interrogation were erroneous; and (2) whether the military judge, and subsequently the Army court, abused its discretion in finding that the evidence was legally sufficient to support the finding that the applicant committed rape, in light of the judge's incorrect instructions on the law of "consent" and "intoxication."

11.  On 15 January 1998, the Clemency and Parole Board recommended the applicant's discharge be upgraded to general under honorable conditions.  On  13 February 1998, the Deputy Assistant Secretary, Army Review Boards approved the recommendation.  

12.  On 12 February 1998, the applicant was released from confinement.

13.  On 19 February 1998, the applicant was placed on voluntary excess leave pending appellate review. 

14.  On 24 March 1998, the applicant was discharged, with a general discharge under honorable conditions, pursuant to his sentence by court-martial as upgraded by the Clemency and Parole Board.  He had completed 2 years and   10 months of creditable active service and had 333 days of lost time (confinement).  He was given a separation program designator (SPD) code of JJD (involuntary discharge due to court-martial, other, under the provisions of Army Regulation 635-200, chapter 3, section IV, which concerns dishonorable and bad conduct discharges).  He was given an RE code of 4.

15.  On 6 July 2000, the U. S. Court of Appeals for the Armed Forces affirmed the decision of the U. S. Army Court of Criminal Appeals.

16.  Headquarters, U. S. Army Armor Center and Fort Knox General Court-Martial Order Number 229, dated 13 October 2000, noted the applicant's sentence of reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 3 years, and a dishonorable discharge had been finally affirmed.  It also noted that his dishonorable discharge was upgraded to a general discharge by the Army Review Board and that the unexecuted portion of the sentence to confinement was remitted effective 11 February 1998.

17.  Army Regulation 635-200 governs the separation of enlisted personnel.  In pertinent part, it states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge.  An honorable discharge may be furnished when disqualifying entries in the soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service.  

18.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.

19.  RE code 4 applies to persons not qualified for continued Army service and the disqualification is not waivable.  RE codes 3 applies to persons not qualified for continued Army service but the disqualification is waivable.

20.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210. 

21.  Army Regulation 601-210, paragraph 4-9a(2) states that a waiver for any prior service individual who was separated or discharged from any component of the U. S. Armed Forces for a court-martial conviction is required.  Paragraph      4-24v states that having a bad conduct or dishonorable discharge is a nonwaivable disqualification.

22.  Title 10, U. S. Code, section 1552(f) states that, with respect to records of courts-martial tried or reviewed under the Uniform Code of Military Justice, the Board's action may extend only to action on the sentence of a court-martial for purposes of clemency.  

CONCLUSIONS:

1.  The Board notes the applicant's contention that the media had a lot of impact on his case due to other sexual harassment incidents brought to light during that time.

2.  The Board notes the statement of the applicant's father, wherein he contends the woman involved in the incident had a bad character, that she bought alcohol for the underage applicant, that she invited the applicant to have sex with her and his buddy, and that she only claimed rape after she attempted a reconciliation with her husband.

3.  The Board also notes, however, that the above contentions (of whether a rape actually occurred) of the applicant's father were brought up on appeal and were finally and conclusively adjudicated in that court-martial appellate process.

4.  The Board notes that the other contentions of the applicant's father (that      the applicant did not have an unbiased jury and that the judge was guilty of misconduct) were not brought up in the appellate process.  

5.  It appears to the Board that the applicant's defense counsel did a creditable job.  If that counsel advised him not to bring in a civilian lawyer, it was the applicant's decision to follow that advice.

6.  The Board notes that the applicant was never sentenced to 8 years confinement.  His adjudged, and approved sentence, to confinement was for       3 years.  There is no evidence to show why the Army Clemency and Parole Board upgraded his discharge and remitted the unexecuted portion of his sentence; however, the Board notes that the courts upheld his sentence.

7.  This Board may only upgrade a discharge for clemency reasons.  It does not have the authority to overturn a court-martial conviction.  

8.  The Board notes that conviction by a general court-martial does not automatically bar the award of an honorable discharge.  However, an honorable discharge may be furnished when disqualifying entries in the soldier’s military record are outweighed by subsequent honest and faithful service over a greater period of time during the current term of service.  The applicant did not have any further service, aside from his time in confinement, that would qualify as subsequent honest and faithful service to be considered when deciding if a fully  honorable discharge should be awarded.

9.  The Board notes that the applicant admitted to doing wrong in his request for clemency after his trial.  Considering the fact the courts have upheld held his conviction, the Board concludes that there is insufficient justification to further upgrade his discharge to fully honorable.

10.  Army Regulation 601-210 states that having a dishonorable discharge is a nonwaivable disqualification for enlistment.  However, the applicant's dishonorable discharge was upgraded to a general discharge.  Even though that upgrade was accomplished for clemency reasons only, not because the sentence was illegal, it appears the applicant legally met the criteria to have his RE code changed to a 3 (i.e., he should have a waivable disqualification instead of a nonwaivable disqualification).  

11.  Since an individual has the right to apply for a waiver, the applicant should visit his local recruiting station to determine if he should apply for a waiver.

12.  The Board is cognizant of the fact recruiting officials generally consider the reason for discharge (i.e., the SPD code) along with the RE code.  The applicant's case is unusual.  Recruiting officials should not consider the applicant's SPD when deciding whether or not to grant a waiver to enlist.  The applicant may wish to provide a copy of this case action to recruiting officials if he requests they process a waiver to enlist. 

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

RECOMMENDATION:

1.  That the applicant's DD Form 214 be amended to change his RE code to 3.

2.  That so much of the application as pertains to upgrading his discharge to fully honorable be denied.

BOARD VOTE:  

__jl____  __lds___  __rd____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___JoAnn Langston_____
		        CHAIRPERSON

INDEX

CASE ID	AR2003084294	
SUFFIX		
RECON		
DATE BOARDED	20031120	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	100.03	
2.	105.01	
3.		
4.		
5.		
6.