MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  5 December 2000
	DOCKET NUMBER:  AR2000036653

	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. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Ann M. Campbell		Chairperson	
	Mr. Jose A. Martinez		Member	
	Mr. Allen L. Raub		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 General Court-Martial (GCM) be set aside, that his previous rank and pay grade be restored, and, that he be retired for service in the rank of staff sergeant (SSG), pay grade E-6.

The applicant also submitted an Application for the Review of Discharge or Dismissal from the Armed Forces of the United States (DD Form 293), undated, requesting upgrade of his discharge to honorable.

APPLICANT STATES: That his daughter has now recanted false testimony given during his GCM.  He provides a copy of his daughter’s affidavit, which contains the recantation and a copy of a polygraph examination.  Her affidavit indicates she was upset with her father and gave evidence that he sexually abused her while it was actually her mother’s boyfriend who committed the acts.

COUNSEL CONTENDS: The applicant was wrongly convicted of criminal acts that he never committed.  Counsel states it is important that the applicant clear his name and accomplish the correction of his military records, so that his conviction and discharge may be appropriately set aside and so that his ability to receive retirement benefits for his 20 plus years of service to the United States Army will be fully restored.

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

On 6 June 1976, the applicant enlisted in the Army.  He was promoted to SSG on 5 December 1984.

In 1988, the applicant was enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  There is no evidence to show completion of the program or his disposition.

On 15 July 1994, a GCM convicted the applicant, contrary to his plea, of performing indecent acts with and upon the body of a female under 16 years of age [his daughter whose date of birth is] on divers occasions between on or about 3 August 1990 and on or about 8 December 1991.  The evidence presented against the applicant during the trial included testimony from his 12-year old daughter that he sexually abused her three or four times a week between ages 8 to 9 during the period 3 August 1990 to 8 December 1991.

His sentence included confinement for 2 years, reduction to pay grade E-1 and a bad conduct discharge (BCD).

On 9 August 1994, while assigned to the Installation Detention Facility, Fort Riley, Kansas, in a request for clemency, he indicated “I have decided to accept responsibility for the abuse of my daughter           .  It is a shameful and disgusting badge that I wear.”

During the period 10 August 1994 to 11 December 1995 (511 days), he was imprisoned at the Special Processing Company, Personnel Control Facility, Fort Knox, Kentucky.

On 13 October 1994, in a memorandum in support of his request for clemency, his commander indicated the applicant had continued successful participation in the ADAPCP and in the Pawnee Mental Health Sex Offenders Treatment Program.

There is no evidence of award of clemency.

On 12 December 1995, he was released from confinement and placed on involuntary excess leave.

On 17 April 1996, the Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

On 16 May 1996, a petition for grant of review of the decision of the United States Army Court of Criminal Appeals was filed with the United States Court of Appeals for the Armed Forces.

On 11 September 1996, the Untied States Court of Appeals for the Armed Forces denied his petition for review.

On 15 October 1996, the GCM Convening Authority directed that portion pertaining to the BCD be executed.  

On 12 March 1997, he was discharged with a BCD as a result of the GCM.  His separation document indicates he had 19 years, 3 months and 22 days of creditable service and 511 days of lost time.  His separation document (DD Form 214) shows he was previously awarded the Army Commendation Medal, the Good Conduct Medal, the Army Achievement Medal, the National Defense Service Medal, the Southwest Asia Service Medal, the Noncommissioned Officer Professional Development Ribbon, the Army Service Ribbon, the Overseas Service Ribbon and the Kuwait Liberation Medal.

Title 10, United States Code, section 1552, as amended, the statutory authority under which this Board was created, precludes any action by this Board, which would disturb the finality of a court-martial conviction. 

As of the date of his application his daughter was 17 years of age and resided at his address.

Army Regulation 15-180 provides for petitioning the Army Discharge Review Board, using DD Form 293, for upgrade of the characterization for discharge.  The regulation specifies that the ADRB may not consider an appeal for an upgrade from an applicant discharged as a result of a GCM.

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.  The evidence and contentions submitted by the applicant, and counsel, have been noted by the Board.  The evidence is unconvincing at this late date.  The Board concludes that changing the effective outcome of a trial by GCM based upon this partial information is unwarranted.

2.  Trial by GCM was warranted by the serious nature of the offenses charged, the conviction is final and the sentence is commensurate with the misconduct of which the applicant was convicted.

3.  The stated contentions relate to evidentiary and procedural matters which were adjudicated finally and conclusively in the court-martial trial and appellate review process, and furnish no basis for setting aside his court-martial or sentence.

4.  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 this requirement.

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

__ac___  ___jm____  __ar____ DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000036653	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001205	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.105	CM w/DD	
2.		
3.		
4.		
5.		
6.