MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           26 October 2000
	DOCKET NUMBER:  AR2000045592

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Melinda M. Darby 		Chairperson	
	Mr. William D. Powers		Member	
	Mr. Arthur A. Omartian		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 be upgraded.

APPLICANT STATES:  In effect, that his dishonorable discharge should be upgraded.

EVIDENCE OF RECORD:  The applicant's military records show he entered
active duty on 14 August 1969 and continued to served through a series of continuous reenlistments.  He served in Vietnam from 20 March 1970 to 20 February 1971.  

He was convicted by a general court-martial on 5 March 1987 for rape on numerous occasions during the period 3 February 1984 through 31 May 1985 (charge I) (Guilty, except the word “rape”, substituting therefor the words “commit the offense of carnal knowledge with”) and for committing sodomy with a child under the age of sixteen on numerous occasions during the period 3 February 1984 through 31 May 1985 (charge II) (Guilty, except for the word “anal”).  His punishment consisted of confinement for 7 years, total forfeitures, a reduction to the pay grade of E-1 and a Dishonorable Discharge.  The sentence was adjudged and approved on 5 March 1987.

On 30 April 1987, the Court of Military Review affirmed the findings and sentence as provided by the convening authority.

On 20 November 1987, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a Dishonorable Discharge Certificate.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-10 of that regulation provides that a soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been duly executed.

The Table of Maximum Punishment in the Manual for Court-Martial, in effect at the time in question, shows the maximum punishment for rape was death as a court-martial may direct and for carnal knowledge a Dishonorable Discharge, forfeiture of all pay and allowances, and confinement for 15 years.  This table also shows the maximum punishment for sodomy was a Dishonorable Discharge, forfeiture of all pay and allowances and confinement for 20 years.

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 Board noted that he was convicted for committing an offense of carnal knowledge and sodomy with a child under the age of 16.  The Board also noted that for these offenses he could have received confinement for 15 years for carnal knowledge and 20 years for sodomy.

2.  The Board noted the applicant’s contention that his dishonorable discharge should be upgraded.  However, there is no evidence in the applicant’s personnel records, and the applicant has provided no evidence, to show that his discharge was unjust and should be upgraded.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulation.

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:

AAO____  WDP____  MMD____  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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

INDEX

CASE ID	AR2000045592	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001026	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19871120	
DISCHARGE AUTHORITY	AR 635-200, chapter 3	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189 (BCD)		
2.		
3.		
4.		
5.		
6.