MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            7 November 2000
	DOCKET NUMBER:   AR2000041363

	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	
	Mrs. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Paula Mokulis		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 dishonorable discharge (DD) be upgraded to an honorable discharge.  He also request change of the legal conclusion in regard to his creditable active service for pay and retirement purpose to reflect over 20 years of honorable service.  He request that the military court-martial proceedings be expunged from his record; that his conviction was the product of unfair court-martial procedures and that the evidence presented at his military court-martial was constitutionally insufficient to sustain his conviction.  He request that his court-martial sentence be voided.  He further requests immediate release from imprisonment and immediate reinstatement to active military service.  He request retroactive back pay to include pay increase for time in service from the date of his total forfeiture of all pay and allowances; retroactive back-pay for Basic Allowances for quarters to include pay increases for time in service and pay raises from date of his total forfeitures.  He requests retroactive promotion from pay grade E-6 to E-8, compensation for loss of personal property, compensation for unjust imprisonment; compensation for pecuniary benefits for family separation and compensation of emoluments loss during his imprisonment.       

APPLICANT STATES:  In effect, that he was denied due process of law to a fair and impartial trial, when the military judge erred by arbitrarily admitted hearsay testimony that did not rise above subjective belief.

EVIDENCE OF RECORD: The applicant’s military record shows:

He enlisted in the Regular Army on 19 February 1980.  He completed the required training and was awarded military occupational specialty 31U10 (Signal Support Systems Specialist).  His service was continuous through extensions and reenlistment.  The highest grade he achieved was pay grade E-6.   

On 22 October 1993, the applicant was convicted by a general court-martial of two specifications of rape, two specifications of carnal knowledge, two specifications of indecent acts or liberties with a child and communicating indecent language to a child.  The applicant was sentenced to confinement at hard labor for 15 years, a reduction to pay grade E-1, a total forfeiture of all pay and allowances and to be discharged from service with a dishonorable discharge. 

On 13 November 1995, the United States Army Court of Criminal Appeals dismissed both carnal knowledge specifications because they were multiplicity with the rape specifications, thereby negating the findings of guilty of carnal knowledge.  However, the applicant’s petition for a new trial was denied.  The findings of guilty and the sentence was affirmed.  

The applicant petitioned the United States Court of Appeals for the Armed Forces for a grant of review.  On 4 April 1997, the United States of Court of Appeals for the Armed Forces denied review of the applicant’s case. 

On 19 September 1997, the applicant was discharged, in pay grade E-1 under the provisions of the Army Regulation 635-200, chapter 3-10, as a result of a court-martial.  He had completed 13 years, 8 months and 3 days of active military service.  On 15 October 1998, the Army Clemency and Parole Board denied the applicant’s request for parole. 

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:

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 this requirement.

2.  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. 

3.  Since there is no basis to grant the portion of his request pertaining to the upgrade of his discharge, there is likewise no basis to grant the remaining
requests.

4.  The applicant has submitted neither probative evidence nor convincing argument in support of the request.

5.  The applicant has failed to provide any basis for the Board to grant clemency in his case.

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

__gdp___  __mhm___  __pm____  DENY APPLICATION

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

INDEX

CASE ID	AR2000041363	
SUFFIX		
RECON		
DATE BOARDED	20001107	
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	19970919	
DISCHARGE AUTHORITY	AR635-200,chp3 .  .  .  .  .  	
DISCHARGE REASON	A31.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.0000	
2.		
3.		
4.		
5.		
6.