MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 October 2000                            
	DOCKET NUMBER:   AR2000044578

	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:

	Ms. Melinda M. Darby 		Chairperson	
	Mr. Arthur A. Omartian		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 effect, that his bad conduct discharge (BCD) be upgraded to an honorable discharge. 

APPLICANT STATES:  In effect, he would like his discharge upgraded so that he can receive medical benefits and apply for a home loan.  He has a metal plate in his ankle, which makes it difficult for him to work in cold and rainy weather.  The upgrade would help him and his family on medical cost.  The upgrade would also help him and his family have a better life.  The applicant further states that he has a great job now, which he has held for 8 months and an upgrade of his discharge, would help him to provide for his family. 

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

He enlisted in the Regular Army on 6 November 1990, for 4 years.  He completed the required training and was awarded military occupational specialty 11M10 (Fighting Vehicle Infantryman).  On 10 May 1995, the applicant was honorably discharged after serving 4 years, 6 months and 4 days of honorable active duty.  On 11 May 1995, the applicant immediately reenlisted for 3 years. The highest grade he achieved was pay grade E-5.   

On 7 October 1996, the applicant was convicted by a general court-martial of three specifications of maltreatment, three specifications of solicitations of another to commit sodomy, three specifications of indecent assault and two specifications of solicitation of another to commit adultery.  He was sentenced to confinement at hard labor for 8 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.  The convening authority approved the sentence except for a portion of the forfeitures which he was directed to pay to his wife.  

On 28 April 1998, the United States Army Court of Criminal Appeals dismissed one indecent assault specification and approved only 4 years of the confinement. The Army Clemency and Parole Board also reduced the dishonorable discharge to a bad conduct discharge.  The applicant petitioned the United States Court of Appeals for the Armed Forces for a grant of review.  On 16 October 1998, the United States of Court of Appeals for the Armed Forces denied review of the applicant’s case.  

On 18 December 1998, the applicant was discharged, in pay grade E-1 under the provisions of the Army Regulation 635-200, chapter 3-11, as a result of a court-martial.  He had completed 5 years, 11 months and 1 day of active military service and had 222 days of lost time.

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

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

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

__aao___  __mmd___  __wdp___  DENY APPLICATION

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

INDEX

CASE ID	AR200044472	
SUFFIX		
RECON		
DATE BOARDED	20001026	
TYPE OF DISCHARGE	(BCD)	
DATE OF DISCHARGE	19981218	
DISCHARGE AUTHORITY	AR635-200, chp11 .  .  .  .  .  	
DISCHARGE REASON	A68.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.6800	
2.		
3.		
4.		
5.		
6.