MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            8 September 1999
	DOCKET NUMBER:   AR1999018646

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Karen L. Wolff		Member	
	Mr. Orville W. Troesch, 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:  In effect, that his dishonorable discharge (DD) be upgraded to a general, under honorable conditions discharge (GD).  

APPLICANT STATES:  In effect, that he could clear himself with a DNA test but he was never tested even after he had requested one be taken.  He further indicates that he is willing to take a DNA test for this Board.

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

On 28 September 1981, the applicant reenlisted in the Regular Army for 6 years at Fort Bragg, North Carolina.  At the time of his reenlistment the applicant had completed 2 years, 6 months, and 1 day of honorable active service; attained the rank of specialist/E-4; held military occupational specialty (MOS) 13B (Cannon Crewman); completed an overseas tour of duty in Korea; and had earned the Army Achievement Medal and the first award of the Army Good Conduct Medal (AGCMDL).

The applicant’s record, for the period of service under review, shows that he completed a second tour in Korea in June 1984; that he was promoted to the rank of sergeant/E-5 on 6 January 1986 while serving at Fort Hood, Texas; and that he earned the second award of the AGCMDL on 26 March 1985. 

His disciplinary history, for the enlistment under review, includes his being barred from reenlistment on 27 August 1985, based on indebtedness and his failure to follow his commander’s guidance to resolve the debt.  He also accepted nonjudicial punishment, under the provisions of Article 15 of the UCMJ, on 
21 May 1986 for being AWOL from 24 to 27 April 1986, and for making a false official statement on 2 May 1986.  His punishment for these offenses included a reduction in rank to specialist/E-4; forfeiture of $200.00 per month for 2 months, suspended for 60 days; and 30 days of extra duty.  

On 10 November 1986, the applicant was tried by general court-martial for the following Articles of the UCMJ:  120-for rape; 129-for breaking and entering with the intent to commit larceny; 80-for attempting to steal by means of physical force and violence; and 134-for false swearing.  He was found guilty of all charges, and was sentenced to be dishonorably discharged; to forfeit all pay and allowances; and to confinement for thirty years.  

The court-martial was promulgated in General Court-Martial Order Number 1, Headquarters, 1st Cavalry Division and Fort Hood, Texas 76545-5100, dated 
15 January 1987, which ordered the sentence executed with the following modifications:  the period of confinement was modified to 9 years and that portion of confinement in excess of 7 years was suspended.  The applicant was imprisoned at Fort Leavenworth, Kansas on 26 November 1986 to serve his confinement pending completion of the appellate review.  
On 29 April 1987, the United States Army Court of Military Review conducted their appellate review and on consideration of the entire record, including consideration of the issue personally specified by the applicant, they held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact.  Accordingly, they affirmed the findings of guilty and the sentence as promulgated in General Court-Martial Order Number 1 as outlined in the proceeding paragraph.

The dishonorable discharge portion of the applicant’s sentence was ordered executed in General Court-Martial Order Number 367, United States Army Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth Kansas, Headquarters, Fort Leavenworth, Kansas dated 21 October 1987.  In addition, the order directed that the applicant serve the rest of his confinement at the Disciplinary Barracks at Fort Leavenworth, Kansas.  Accordingly, on 
20 November 1987, the applicant was dishonorably discharged after completing 4 years, 11 months, 17 days of his current enlistment, and a total of 7 years,
5 months, and 18 days of active military service.

DNA testing is not within the purview of this Board.  The Board is not in a position to conduct medical testing or to make evidentiary findings based on the results of such testing.  In addition, Title 10, United States Code, Section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction. 

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. Title 10 United States Code, section1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to change the discharge 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.  After a thorough review of the applicant’s record and any issues submitted by him, the Board found no cause for clemency in this case.  

2.  Trial by court-martial was warranted based on the gravity of the offenses with which the applicant was 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.  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. 

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

__klw ___  ___fkm__  __owt___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999018646	
SUFFIX		
RECON		
DATE BOARDED	1999/09/08	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1987/11/20	
DISCHARGE AUTHORITY	GCM	
DISCHARGE REASON	GCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  31	105.0100/GCM	
2.  		
3.		
4.		
5.		
6.