MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            8 April 1999
	DOCKET NUMBER:   AC97-10940
				   AR1998012001

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Ms. Barbara J. Ellis		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, in effect, he be granted pay and allowances from the date of his confinement due to a general court-martial to the date of his new sentence.

APPLICANT STATES:  That he received a general court-martial which sentenced him on 17 February 1993 to 15 years confinement, total forfeitures, reduction to E-1, and a dishonorable discharge.  The court-martial sentences was set aside by the United States Court of Appeals for the Armed Forces on 
28 September 1995 and returned to the general court-martial authority to consider a new sentence.  A new sentence was imposed on 25 March 1996 which reinstated the sentence of 15 years confinement, total forfeitures, reduction to E-1, and dishonorable discharge.  The applicant contends that he is due pay and allowances from 17 February 1993 to 24 March 1996.

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

That he was an E-4 assigned in Germany.  On or about 1 July 1992, he was accused by a German civilian woman of raping her.  A general court-martial found him guilty of rape, violation of Article 120, and on 17 February 1993, he was sentenced to 15 years confinement, total forfeitures, reduction to E-1, and a dishonorable discharge.  The court-martial was appealed.  On 28 September 1995, the United States Court of Appeals for the Armed Forces affirmed the findings of guilt but set aside the sentence accepting the arguments that the general court-martial authority had not reviewed the applicant's post trial submission of extenuating circumstances and appeal for leniency prior to sentencing.  The court-martial was returned to the command exercising general court-martial authority over the applicant for consideration of the applicant's post trial submissions and to set a new sentence.  These actions were accomplished and a new sentence was imposed on 25 March 1996 which reinstated the original sentence of 15 years confinement, total forfeitures, reduction to E-1, and dishonorable discharge and ordered them into execution at that date with the exception of the dishonorable discharge which would be issued at a later date.  On 27 September 1996, the United States Court of Criminal Appeals affirmed the findings of guilt and the new sentence.

It should be noted that the findings of guilt were never set aside by the appeal and were always affirmed .  The sentence only was set aside by appeal and later reinstated as a new sentence after consideration of the applicant's post trial submissions.

ADVISORY OPINION:  An advisory opinion was requested from Defense Finance and Accounting (DFAS) on the question of payment of pay and allowances to the applicant from the date of his initial confinement to the date of his new sentence.  DFAS opined that the applicant was not due payment of monies withheld caused by his first court-martial action (sentence) being set

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

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

_GDP ___  _JLP____  _BJE ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-10940/AR1998012001	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990408	
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.