MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE: 9 December 1999                            
	DOCKET NUMBER:   AR1999021202

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston 		Chairperson	
	Mr. Thomas D. Howard		Member	
	Mr. James P. Steuve		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 his court-martial conviction be set aside and that his dishonorable discharge (DD) be upgraded to a general discharge (GD) or a fully honorable discharge (HD). 

APPLICANT STATES:  In effect, that he is innocent of the kidnapping charge.  There was only one eyewitness, and that person’s statement was disregarded during his trial.  Further, he was denied a fair trial.  Two out of five judges of the military’s highest court found that he suffered prejudicial error because the presiding judge failed to instruct the jury that they could have voted on a lessor included offense of assault and battery.  Additionally, medical documents supporting his innocence were withheld.  In support of his request he submits two statements written in his own behalf for the Board to consider, one of the statements is a sworn statement.  Both statements are dated 2 January 1999. He also submits an eyewitness statement dated 15 February 1990.

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

He served honorably in the Regular Army (RA) from 30 October 1984-6 April 1989.  On 7 April 1989, he reenlisted in the RA for 4 years and his previous military occupational specialty (MOS) 55B (Ammunition Specialist). 

On 29 June 1990, the applicant was convicted by a general court-martial (GCM) for attempted kidnapping and for failing to obey a general lawful regulation, both offenses occurred on 15 February 1990.  He was sentenced to a DD, forfeiture of all pay and allowances, reduction from pay grade E-3 to pay grade E-1 and confinement at hard labor for 6 years.  On 25 August 1990, the convening authority affirmed the sentence.

On 5 July 1991, the United States Court of Military Review affirmed the finding and approved the sentence.  The appropriate authority ordered the DD duly executed upon completion of his period of confinement.  

On 26 March 1993, the applicant was released from confinement and he was separated under the provisions of chapter 3, Army Regulation 635-200 with a DD.  He had served 5 years, 7 months and 29 days of active military service.  He also had 2 years, 8 months, and 27 days lost time due to being in military confinement.

The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action 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.  In order to justify clemency a military record 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.  The Board considered the applicant’s contention that he was denied a fair trial.  The Army Board for Correction of Military Records (ABCMR) is not an investigative agency.  The ABCMR does not have the resources to conduct investigations.

3.  The board concluded that the records that are available clearly show no indication of procedural errors which would have jeopardized the applicant’s rights.  Any procedural errors in the trial process should have been resolved in the appeal of the court-martial conviction.

4.  Further, the applicant’s discharge was accomplished in compliance with applicable regulations in effect at the time of his separation.

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

JHL_____  TDH____  JPS_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021202	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19991209	
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	19930326	
DISCHARGE AUTHORITY	AR635-200, CH 3 	
REASON	A73.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.7300	
2.		
3.		
4.		
5.		
6.