MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  12 September 2000
	DOCKET NUMBER:  AR2000038186

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Ms. Carol J. Suiter		Member	
	Mr. Fred N. Eichorn		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 dishonorable discharge be upgraded to honorable or that his records reflect that he was, in effect, retired by reason of physical disability rated at 100 percent.  He also asks that the court-martial be removed from his records.

APPLICANT STATES:  In effect, that his general court-martial conviction was based on racism, fraud throughout the proceedings, violation of his and his daughter’s 4th amendment rights, false testimony, intentional violation of his constitutional right to a fair trial, and wrongful conviction.  He submits copies of Title 10, U S Code documents, extracts from the Federal Reporter citing case law, portions of the Article 32 investigation, portions of the record of trial, medical records, and copies of statements and documents used in his appeal process.

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

The applicant was serving on active duty in pay grade E-7 when he was charged before a general court-martial of committing carnal knowledge with his daughter, committing sodomy upon a female under the age of 16 years, having sexual intercourse with a woman, not his wife, but his natural born daughter, and communicating in writing indecent language to a child under the age of 16 years. 

On 30 July 1991 he was found guilty by a general court-martial of committing an indecent act upon a female under the age of 16 years and communicating in writing indecent language to a child under the age of 16 years.  The approved sentence included confinement for 5 years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge.  The Army Court of Military Review affirmed the finding of guilty and the sentence on 27 January 1993.  Effective 11 February 1994 the dishonorable discharge was executed.

The applicant was released from confinement at the Disciplinary Barracks, Fort Leavenworth, Kansas on 31 March 1995.  He is currently serving an 18 month to 2 year sentence in a Federal Correctional Institution for possession of a firearm by a felon.

Although the applicant provides three self authored statements about false testimony, unlawful search, racism, false charges, fraud, inadequate counsel, incomplete knowledge by the convening authority, and law case cites, this Board is not an investigative body and the applicant must avail himself to the avenues provided through the judicial process.

Title 10 U S Code, section 1552, states that action by this Board relating to records pertaining to court-martial cases may extend only to reflect actions taken by reviewing authorities or action on the sentence of a court-martial for purposes of clemency.

The Manual for Courts-Martial, Table of Maximum Punishments, shows that the applicant could have been sentenced for up to 9 years confinement and a dishonorable discharge for the offenses that he was convicted of.

Army Regulation 635-40 establishes the policy for physical disability evaluation and processing.  Paragraph 4-2 provides that a soldier may not be referred for disability processing if under sentence of dismissal or punitive discharge.

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.  Trial by court-martial was warranted by the gravity of the offenses 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.

2.  The applicant's contentions relate to evidentiary and procedural matters that were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.  There also does not appear to be cause for an upgrade of his discharge based on clemency.

3.  Likewise, because the court-martial was finally and conclusively adjudicated in the appellate process, there is no basis for removal of the court-martial conviction from his records.

4.  There was no regulatory authority to refer the applicant for physical disability processing while under court-martial charges, which eventually led to his conviction and sentence to a punitive discharge.

5.  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

6.  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

___cf__  ___cs_____  __fe____  DENY APPLICATION

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

INDEX

CASE ID	AR2000038186	
SUFFIX		
RECON		
DATE BOARDED	20000912	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19940211	
DISCHARGE AUTHORITY	AR 635-200, CH 3-10	
DISCHARGE REASON	Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.	134.00	
3.		
4.		
5.		
6.