MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 May 2000                   
	DOCKET NUMBER:   AR2000035255

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James P. Stueve		Member	
	Ms. Carol Jo Suiter		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 discharge be upgraded and that he be entitled to all benefits and his pension.

APPLICANT STATES:  That his court-martial was overturned after he got off active duty.  He provides no supporting evidence.

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

He initially served in the Regular Army from 7 July 1976 through 3 July 1980 and was then transferred to the U. S. Army Reserve Control Group (Reinforcement).  He was assigned to the Ready Reserve on 24 August 1981 and entered active duty on 6 December 1981.  His DA Form 2-1, Personnel Qualification Record shows that he was attached to Company A, Troop Command, Fort Jackson, SC and performed duties as an administrative specialist.

On 23 August 1982, the applicant was convicted by a general court-martial of fraternizing with trainees, indecent language, indecent exposure and indecent assault.  He was sentenced to be reduced to pay grade E-1, to forfeit all pay and allowances, and to confinement at hard labor for 15 months.  

On 5 August 1983, the applicant was placed on excess leave pending appellate review of his case.

On 17 August 1983, the U. S. Court of Military Review affirmed the findings of guilty and the sentence.

On 12 January 1984, the U. S. Court of Military Appeals remanded the applicant’s case to the U. S. Court of Military Review.

On 26 March 1984, the U. S. Army Court of Military Review agreed with the applicant’s contention that the staff judge advocate’s post-trial review was prejudicially inadequate.  The convening authority’s action was set aside and the record of trial was returned to The Staff Judge Advocate General for a new review and action by the same or a different convening authority.  

On 22 May 1984, the approval authority approved the sentence as adjudged on 23 August 1982 except that forfeitures in excess of $275.00 pay per month of the sentence to forfeiture of all pay and allowances would be suspended until such time as the sentence was ordered into execution at which time, unless sooner vacated, the suspended portion would be remitted.

On 24 December 1984, the applicant was discharged, with a dishonorable discharge, pursuant to his court-martial sentence after completing 6 years,          1 month and 4 days of creditable active service with 347 days of lost time (confinement).
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-6 discusses separation as it affects the soldier. It states that a dishonorable discharge deprives the soldier of all veterans’ benefits and may deprive him or her of civil rights.

Title 10, U.S. 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 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.  The applicant’s initial conviction was set aside; however, the U. S. Army Court of Military Review ordered the record of trial to be returned for a new review and action.  A new action was taken and the applicant was once again convicted and sentenced.  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.  The applicant provides no evidence to show that his new court-martial conviction was set aside or overturned.  

3.  A dishonorable discharge deprives a soldier of all veterans’ benefits.

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

__lls___  __jps___  __cjs___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR2000035255	
SUFFIX		
RECON		
DATE BOARDED	20000504	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.