MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            6 January 1999      
	DOCKET NUMBER:   AC98-12446
                                              AR1998014190

	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. Jessie B. Strickland		Analyst	

  The following members, a quorum, were present:

	Mr. Thomas D. Howard, Jr.		Chairperson	
	Mr. Luther L. Santiful		Member	
	Mr. Curtis W. Barbee		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:  In effect, that his court-martial conviction be set aside and that he be retired for length of service.

APPLICANT STATES:  That the punishment he received in his trial by a general court-martial was too severe in light of his long period of honest and faithful service.  He further states that there are serious legal questions as to the propriety of his conviction as well as witness intimidation.

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

The applicant was inducted on 14 February 1968 and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 16 August 1976.

His records show that on 12 February 1974 he was convicted by a general  court-martial of committing assault upon his wife by cutting her on her neck and back with a dangerous weapon (a pocketknife).  He was sentenced to a forfeiture of $50.00 for 4 months and restriction for 2 months.

On 3 April 1984 the applicant was notified that a Department of the Army Selection Board had determined after a review of his Official Military Personnel File (OMPF) that he should be barred from reenlistment under the Qualitative Management Program (QMP) based on the presence in his records of a general court-martial order, a letter of removal from the drill sergeant program, and a substandard Noncommissioned Evaluation Report (NCOER).

The applicant appealed the bar to reenlistment with the support of his chain of command and the bar to reenlistment was removed on 2 January 1985.

On 19 October 1988, the applicant was convicted by a general court-martial of committing carnal knowledge with his stepdaughter, a child under 16 years of age and of taking indecent liberties with his stepdaughter, another child under   16 years of age.  He was sentenced to a bad conduct discharge, confinement for 5 years, total forfeiture of pay and allowances, and reduction to the pay grade of  E-1. 

The convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for 5 years, and reduction to the pay grade of E-1.  The applicant was transferred to the United States Disciplinary Barracks at Fort Leavenworth, Kansas to serve his confinement while awaiting his appellate review and any appeals he chose to submit.

The Court of Military Review affirmed the findings and sentence of the general court-martial and on 20 November 1989 orders were published directing the discharge portion of the sentence to be executed.
Accordingly, the applicant was discharged pursuant to the sentence of a general court-martial on 15 December 1989.  He had served 20 years, 5 months, and 16 days of total active service was issued a Bad Conduct Discharge Certificate. 

A review of the applicant’s records show that the applicant was awarded the Army Commendation Medal 1OLC, the Army Good Conduct Medal (6th Award), the National Defense Service Medal, the Vietnam Service Medal, The Republic of Vietnam Campaign Medal, the Army Service Ribbon, the Overseas Service Ribbon, the NCO Professional Development Ribbon, and the Republic of Vietnam Gallantry Cross with palm.

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.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  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.  

3.  The applicant’s contentions have been noted by the Board and appear to be without merit.  The applicant has failed to show through the evidence submitted with his application and the evidence of record that he was not afforded due process in his trial by court-martial.  Inasmuch as he was afforded an appellate review and had the opportunity to submit matters in his own defense during the court-martial proceedings as well as through the appeal process, there is no basis for the Board to grant his request. 

4.  The Board also finds the applicant’s contention that his punishment was too severe given his long period of faithful and honorable service to also be without merit.  Given the seriousness of the charges for which he was convicted and considering his overall undistinguished record of service, the discharge he received appears to be appropriate under the circumstances.

5.  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

___tdh__  __lls______  _cwb____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12446/AR1998014190	
SUFFIX		
RECON		
DATE BOARDED	1999/01/06	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	1989/12/15	
DISCHARGE AUTHORITY	GCM	
DISCHARGE REASON		
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES         1.  A68.00		
2.		
3.		
4.		
5.		
6.