PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  16 December 1999                           
	DOCKET NUMBER:   AR1999022134

	I certify that hereinafter is recorded the true and complete record of the proceedings 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:

	Mr. Fred k. McCoy		Chairperson	
	Mr. Raymond V. O’Connor		Member	
	Mr. Stanley Kelley		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his dishonorable discharge (DD) be upgraded to a general discharge (GD).  He also requests that Item 6 (Place of Entry into Active Duty) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected by deleting Fort George G. Meade, Maryland, and by adding Fort Dix, New Jersey.

3.  The applicant states in effect, that he has committed no criminal offenses and he has been continuously employed since being discharged from the military.  He is requesting that his DD be upgraded so that he may be entitled to receive medical care through the Department of Veterans Affairs (DVA).  Additionally, he states that he has never gone to Fort Meade, Maryland.  In support of his request he submits his DD Form 214.

4.  The applicant’s military records show that on 21 September 1976, he enlisted in the New York Army National Guard (NYARNG) for a period of 6 years.

5.  On 18 December 1977, as a result of 5 unexcused absences within a 1 year period, the applicant received a notice of unsatisfactory participation and right to appeal an involuntary call to active duty from the NYARNG. 

6.  Orders #53-14, Headquarters First US Army, Fort Meade, Maryland, dated 
20 March 1978, shows that the applicant was relieved from his present reserve component and ordered to active duty.  He was assigned to the US Army Reception Station, Fort Dix, New Jersey with a reporting date of 3 May 1978.  His active duty commitment was 1 year, 8 months, and 2 days.  On 1 June 1978, the applicant was assigned to Germany. 

7.	On 18 July 1978, the applicant accepted nonjudicial punishment (NJP) under 
the provisions of the Uniform Code of Military Justice (UCMJ) for stealing a bike (the property of private citizens) of a value of approximately $30.00.  His punishment included forfeiture of pay and extra duty.

8.  On 27 November 1978, the applicant accepted a second NJP under the provisions of the UCMJ for being disorderly.  His punishment included reduction from pay grade E-2 to pay grade E-1 (suspended), forfeiture of pay and extra duty.

9.  On 27 July 1979, the applicant was convicted by a general court-martial (GCM) for attempted rape of a female service member.  He was sentenced to total forfeiture of pay, reduction from pay grade E-2 to pay grade E-1, confinement at hard labor for 2 years, and a DD.  On 9 May 1980, the convening authority affirmed the sentence subject to appeal of the discharge action.

10.  On 9 May 1980, the United States Court of Military Review affirmed the finding, approved the sentence, and ordered the DD duly executed upon completion of the applicant’s period of confinement.  

11.  On 13 January 1980, the applicant was released from confinement and he was separated under the provisions of chapter 11, Army Regulation 635-200 with a DD.  He had served 1 year, 2 months and 24 days of active military service.  He also had 382 days lost time due to being in confinement.

12.  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.

CONCLUSIONS:

1.  The Board concludes that trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with the applicable law and regulations then in effect.  The discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The Board congratulates the applicant on his achievements since departing the Army.  However, the Board does not grant relief based solely on post service conduct.

3.  Entitlement to veteran’s benefits is not a matter under the purview of this Board, but rests with the Department of Veteran Affairs.  Further, the lack of entitlements does not provide a basis upon which to grant clemency.

4.  Further, the Board concludes that the applicant is entitled to have his records corrected to show his place of entry onto active duty was Fort Dix, New Jersey.

5.  In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by issuing to the individual concerned a DD Form 215 which shows that his DD Form 214 issued to him on 13 August 1980 is corrected to read in item 6 (Place of Entry into Active Duty) Fort Dix, New Jersey.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

FKM____  RVO____  SK______  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999022134	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19991216	
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	19800113	
DISCHARGE AUTHORITY	AR 635-200, CH11 Court-Martial Conviction	
DISCHARGE REASON	A10.31	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.0100	
2.		
3.		
4.		
5.		
6.