MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            20 March 2001                  
	DOCKET NUMBER:   AR2000042833

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn 		Chairperson	
	Mr. Raymond J. Wagner 		Member	
	Mr. William D. Powers 		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 a brief prepared by counsel, that the bad conduct discharge (BCD) be set aside and he be permitted to retire with an honorable discharge.  

APPLICANT STATES:  In the brief prepared by counsel, that there were eight errors (or issues) committed in his case, essentially as follows:  I)  "Movant asserts that the evidence presented at trial was factually and legally insufficient to sustain the conviction;  II) Movant asserts the sentence adjudged was unfair and excessive in light of his excellent and extended service record;  III) Movant asserts that civilian counsel failed to submit matters on his behalf pursuant to R.C.M. 1105;  IV)  Defense counsel was ineffective by failing to assert alibi defense; V) The actions of trial counsel and garrison commander created impression of improper command influence; VI) Movant was denied pretrial discovery thereby depriving him of a fair and impartial trial; VII) Movant asserts that trial judge erred by altering the charges during trial;" and "VIII) Movant received a bad conduct discharge although that part of the sentence was not approved by the convening authority."

Counsel, in his brief, essentially states that the evidence presented at the trial was not only inconsistent, it was unreliable.  Testimony by the alleged victim was contradictory in many respects, as reflected in the record of trial, submitted by the applicant.  The alleged victim could not recall the date or time of the alleged incident.  The evidence of the record of trial indicates that the applicant had a motive to fabricate her allegations.  The record of trial indicates that the defense was denied the opportunity to introduce evidence concerning the alleged victims credibility.  Finally, the applicant contends that no rational "trier of fact" could have found proof of guilt beyond a reasonable doubt.  

Counsel highlights the facts of the trial that sometime in May or June 1994, the applicant, while serving as charge of quarters (CQ), assaulted the alleged victim, who was his assistant CQ, by massaging her shoulders, kissing her neck and ears and sucking on her breasts.  The applicant received a BCD, although it was not approved by the convening authority, and he was discharged with more than 20 years outstanding service, as evidenced by his many awards and decorations. He contends that the applicant's civilian counsel, who was subsequently debarred by the State of Georgia, failed to submit any matters of clemency in the appellate process.  His military counsel was remiss in not submitting an alibi defense since he was not at Fort Stewart, Georgia due to leave and being involved in a civil court case in the State of Florida at Tampa.  He submits an extensive record of hearings involving this civil court case between April 1994 and June 1995.  Counsel also contends that the applicant's defense counsel and the garrison commander met a number of times leading up to the pretrial investigation (an investigation under the provisions of Article 32, Uniform Code of Military Justice (UCMJ)).  This gives the impression, or might be evidence of undue command influence.  The applicant also was denied a verbatim transcript of the pretrial (Article 32) investigation because it was destroyed.  Also, during the trial the military judge inappropriately altered the charges by making them broader by substituting the words "during the summer of 1994: for the words "between on or about 1 May and or(sic) about 30 June 1994." Finally, even though the convening authority did not approve the BCD, the applicant received such a discharge, and as such, has not been able to obtain employment and he has been wrongfully denied benefits of which he would otherwise be entitled. 

COUNSEL CONTENDS:  Besides the issues outlined in his brief, he submits a request for the Board to waive the statute of limitations in this case due to the failure of the applicant's initial civilian counsel to submit any matters in appeal or clemency in the appeal process to the United States Army Court of Military Review.  His military defense counsel submits an affidavit to this effect.  Further, a copy of the action by the State of Georgia to disbar the applicant's original civilian counsel in December 1997 is with the application.  

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

He had 2 years active and 4 years inactive service in the United States Marine Corps Reserve from April 1973 through March 1979.  He was an antitank assaultman, with the rank of corporal.  

After 3 months in the Delayed Entry Program (DEP) of the United States Army Reserve from October 1980 through January 1981, the applicant enlisted in the Regular Army, in pay grade E-2, for 6 years.  His service thereafter was continuous until discharge on 10 April 1998, as result of trial by court-martial.  His specialty was Armor Crewman and the highest rank he attained was staff sergeant, pay grade E-6, with a date of rank of 22 September 1985.  

On 12 January 1996, the applicant was convicted by a special court-marital (trial judge only) at Fort Stewart, contrary to his pleas, of one specification of violation Article 93, UCMJ, of maltreatment of a subordinate during the summer of 
1994 (substituted wording for the original wording of "between on or about 
1 May and on or about 30 June 1994"), and two specifications of violation of Article 134, UCMJ, of committing an indecent assault, again initially "between" on or about 1 May 1994 through on or about 30 June 1994," but amended to read "during the summer of 1994."  The sentence imposed by the trial judge was reduction to the grade of E-1, confinement at hard labor for 4 months and a BCD. 

The applicant was reduced to E-1, and was placed into confinement on the same day as the trial at Fort Dix, Jersey.  He was released from confinement on 
19 April 1996 after 97 days confinement.  He was placed on involuntary excess leave (without pay and allowances on 21 April 1996. 

On 29 April 1996, the convening authority, a major general, approved the sentence, except for that part of the sentence extending to a BCD, would be executed.  The entire record of trial then was referred to the Department of the Army for appellate review.

On 1 May 1996, he was reassigned to Fort Knox, Kentucky for further processing.  On 2 July 1996, he was again placed on involuntary excess leave, pending appellate review.  This period of excess leave was creditable for all purposes except pay and allowances.  

On 22 January 1997, the United States Army Court of Criminal Appeals (redesignated name of the United States Army Court of Military Review) affirmed the findings of guilty and the sentence.  

On 10 February 1998, General Court-Martial Order 10 was issued by the US Army Armor Center and Fort Knox, announcing that the sentence of reduction to private E-1, confinement for four months and a BCD imposed against the applicant on 12 January 1996 had been affirmed, and that Article 71c, UCMJ, having been complied with, the BCD was to be executed.  The order affirmed that his confinement had been served.  

On 10 April 1998, the applicant was discharged, in absentia, with a BCD in accordance with Army Regulation 635-200, chapter 3, section IV.  He was credited with 17 years, 2 months and 25 days active service on his period of service since 1981, 2 years prior active service and 4 years, 2 months and 
18 days prior inactive service.  His service had been extended for the convenience of the government for 847 days and he had been on involuntary excess leave (without pay and allowances) for 648 days from 2 July 1996.  His awards and decorations included the Army Commendation Medal; the Army Achievement Medal (two awards); the Good Conduct Medal (four awards); the National Defense Service Medal (two awards); the Southwest Asia Service Medal with two bronze service stars; the Noncommissioned Officer Professional Development Ribbon (Advanced Level); the Army Service Ribbon; the Overseas Service Ribbon (third award); the Marine Corps Reserve Medal (two awards); the Kuwait Liberation Medal (SA) and the Kuwait Liberation Medal (KU); the Expert Marksman Qualification Badge, M16 Rifle and M9MM Pistol; and the Air Assault Badge.  He had served twice overseas in Europe, once in Korea and in Southwest Asia during Operation Desert Shield/Desert Storm from 16 January to 27 March 1990.  His Senior Noncommissioned Officer Evaluation Reports were fully satisfactory, with only one report being below a satisfactory level while at the 7th Army Combined Training Center for 4 months in 1990.  He had no other adverse actions or nonjudicial punishments in his records.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

Court-martial convictions stand as adjudged or modified by appeal through the judiciary process.  In accordance with Title 10, United States Code, Section 
1552, the authority under which this Board acts, the ABCMR is not empowered to change a discharge due to matters which should have been raised in the appellate process, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

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 this requirement.

2.  Trial by court-martial was warranted by the gravity of the offenses charged. This is particularly true in view of the applicant's more than 15 years service at the time the offenses occurred.  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.  While the applicant's record of service is generally satisfactory, it was not so outstanding as to provide a basis to grant clemency. His record of service would no doubt have been considered in the sentencing phase of his trial by court-martial. 

4.  The Board notes that applicant and his counsel have submitted a number of issues concerning the conduct of the trial.  However, these matters are outside the purview of this Board and should have been resolved through the appellate process.  The applicant's BCD was imposed only after completion of the appellate approval process in accordance with the UCMJ. 

5.  Entitlement to veteran benefits, or lack of employment opportunities, while regrettable, are not within the purview of this Board.

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

__fne___  __rjw ____  __wdp___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042833	
SUFFIX		
RECON		
DATE BOARDED	20010320	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19980410	
DISCHARGE AUTHORITY	AR635-200, CH 3	
DISCHARGE REASON	A68.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A91.05	
2.	A92.17	
3.	A92.25	
4.	A92.35	
5.	A92.37	
6.