MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            3 May 2000                  
	DOCKET NUMBER:   AR1999034256

	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. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. John H. Kern		Member	
	Mr. Ernest W. Lutz, Jr.		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 he be reinstated to the grade of E-7 and his name returned to E-8 promotion list, repayment of all lost entitlements caused by the grade reduction, and the removal of a court-martial conviction from the performance section of his official military records.

APPLICANT STATES:  Through counsel, that of the three alleged adultery charges, he admitted having sexual intercourse with only one of the women.  He states he should not have been convicted of the charge of adultery because his conduct was not prejudicial to good order and discipline in the armed forces.  His conduct did not affect his duty performance nor did it affect his marital relationship.  Counsel charges that additional pressure was placed on the command to take the applicant to court-martial because of the beheading case of another solider in Germany, when he discovered his wife in an illicit affair.  No commander wanted a similar incident.  It was an injustice to severely punish the applicant, because of the heinous crime someone else committed.

In support of his request, the applicant’s counsel recounts that the applicant made the master sergeant list in thirteen years because of his dedicated service. The applicant though convicted by court-martial was allowed to reenlist for the    2 years of additional service needed to qualify for a 20-year retirement.  The decision that allowed him to reenlist for those additional years was based on the outstanding service he had given the Army.  Lastly, the Army took away the applicant’s career in a discriminatory and unjust manner and now has the opportunity to correct this injustice. 

Counsel submits the court-martial transcript and related investigative documents to include sworn statements and military police investigator reports.  Counsel also submits copies of the applicant’s military personnel records indicating outstanding evaluations and numerous awards.

EVIDENCE OF RECORD:  The applicant's military records were not available.  Information herein was derived from documents provided by the applicant through his counsel.

The documents show that the applicant enlisted in the Regular Army on            13 November 1979, was trained as an infantryman, had assignments of increasing responsibility, served 3 tours in Germany, served 4 months in Turkey while engaged in defensive combat operations in support of Operation Provide Comfort and achieved the grade of  E-7.

An investigation was conducted into the allegation that the applicant was involved in an adulterous relationships.  The findings of the investigation led to the charging of the applicant with three counts of wrongfully having sexual intercourse with women not his wife and with the intent to deceive in that he made a false statement to his company commander that he had never had sexual relations with one of the women.  The applicant appeared before a special court-martial conducted 2-3 June 1994.  Although he submitted matters in his own behalf and maintained his innocence of the allegations, he was found guilty of adultery and making a false official statement.  The applicant was reduced to pay grade E-4.  The case is currently under appeal.

Accompanying the application are sworn statements, military police investigation reports and the court-martial transcript which provides the testimony of the applicant, his spouse, the women he was allegedly involved with, and members of his former chain of command.  These documents detailed his relationship with several women to include one between the applicant and the wife of a young soldier.  The applicant was seen by several members of the civilian and military community "French kissing” another soldier’s wife and her car was observed parked overnight at the applicant’s home on numerous occasions.  On several occasions, the applicant or the paramour were advised to stop the relationship.  On one occasion, a 1SG, related to the applicant how another senior noncommissioned officer had an outstanding career, but ruined it with an adulterous relationship.  The applicant, after transferring to a new command, took the same soldier’s wife with him, had her live in his room and presented her to his command and the community as his fiancée.  The applicant offered that he did not have a sexual relationship with the soldier’s wife, but was assisting her in leaving an abusive relationship.

In denying the additional adultery charges and the false statement charges the applicant’s counsel offered the following explanation.  There was confusion at the time of trial about the definition of “sex.”  The applicant had previously made a statement, “we had sex.”  The statement “we had sex” alone would not be enough to convict the applicant at a guilty plea.  There must be evidence that there was sexual intercourse and not just foreplay.  The applicant’s definition of sex or sexual relationship did not include sexual intercourse.  Despite this confusion on what the applicant meant when he said “we had sex”, he was convicted of making a false official statement based on an earlier statement that he had not had sex with the female.  

The records contained supporting letters from the applicant’s wife and testimony from noncommissioned and commissioned officers that even after knowing of the applicant’s behavior they felt he was still an effective leader.

The Manual for Courts-Martial (MCM), 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.

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 argument is that the applicant’s actions were not prejudicial to good order and discipline and did not bring discredit onto the armed forces.  This argument is extraordinarily inadequate in the face of the evidence submitted by the same counsel.  The evidence shows that the improper relationships caused the applicant to lie to his peers, senior noncommissioned officers and commissioned officers, participate in varying levels of sexual behavior with several women while legally married, participate in conspiratorial behavior and assist a married woman in violating her vows.  The discredit to the armed forces was also brought to the civilian community through his improper relationships by bringing the civilian community into the legal process.  The applicant’s paramours and the jilted husband at different times are described as upset, crying, fearful, or hurt.  These emotions describe the emotional turmoil created and observed by members of the military and civilian community.  In a letter to his congressman, the jilted young solider told how he believed a senior soldier was taking advantage of his wife while his military duties required their separation and described the actions he took through his chain of command and legal assistance to correct the problem.

2. The records reflect that the applicant was certainly competent at his military specialty, but completely disappointed and lost the respect of leaders, such as his company commander.  The company commander stated “ . . . then I come to find out that he hadn’t been telling me the truth, I was disappointed because he (the applicant) had a reputation as being an outstanding noncommissioned officer.  After this I did not trust the applicant.”

3.  The charges against the applicant were based on his having sexual intercourse with a female other than his wife, in violation of the UCMJ (adultery). The testimony contains convincing evidence that the applicant while legally married had improper relationships with several women and sexual intercourse with at least one woman who was not his wife.

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

__rvo____  __jhk____  __ewl___  DENY APPLICATION

						Karl F. Schneider
				      Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034256	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000503	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.