MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 January 2001                   
	DOCKET NUMBER:   AR2000047862

	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. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas E. O’Shaughnessy, Jr.		Member	
	Ms. Brenda F. Hirschi		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 bad conduct discharge be upgraded to general.

APPLICANT STATES:  That he was court-martialed on charges that started out to be sexual harassment but during the trial the charges were changed.  After his discharge he had a job that allowed him to support his wife and six children; however, he was injured and was discharged.  He is currently going through a program for a new position that will allow him to support his family.  The position will require him to take a State exam and be certified.  Unfortunately, his military discharge will make this impossible.  He provides no supporting evidence.

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

After having had prior service in the U. S. Marine Corps and the National Guard, he enlisted in the Regular Army on 28 November 1988.  He was promoted to Sergeant, E-5 on 1 December 1992.  He had no record of disciplinary action until his court-martial.

On 31 July 1996, the applicant was convicted by a special court-martial of four specifications of maltreatment of a subordinate on diverse occasions, six specifications of assault consummated by a battery, and one specification of indecent language.  (He had made unlawful sexual advances toward three subordinate female soldiers in his unit, his advances included unwelcome embraces, kisses, and physical contacts of a sexual nature and offensive sexual remarks.)  He was sentenced to be reduced to pay grade E-1, to be reprimanded, and to be discharged with a bad conduct discharge.

On 14 April 1997, the U. S. Army Court of Criminal Appeals, upon consideration of the entire record including consideration of the issues personally specified by the applicant, affirmed the findings of guilty and the sentence.

On 21 April 1997, the applicant’s defense counsel moved for leave to file additional matters personally submitted by the applicant.  On 24 April 1997, the applicant’s defense counsel moved that the U. S. Army Court of Criminal Appeals reconsider its 14 April 1997 decision based on the latest matters submitted by the applicant.  Both motions were granted and the Court’s 14 April 1997 decision was vacated.  On 2 June 1997, the Court reconsidered the entire record including consideration of the issues personally specified by the applicant and again affirmed the findings of guilty and the sentence.

On 10 April 1998, the applicant was discharged with a bad conduct discharge pursuant to his court-martial sentence.

On 19 May 1999, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.  On 17 November 1999, the ADRB again denied the applicant’s request for an upgraded discharge.

The Manual for Courts-Martial United States, 2000 edition discusses “cruelty and maltreatment” under Article 93.  It states that the cruelty, oppression, or maltreatment, although not necessarily physical, must be measured by an objective standard.  Assault, improper punishment, and sexual harassment may constitute this offense.  

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.  The applicant’s contentions regarding the change in the charges during the trial do not appear to have a basis in fact.  The charge of maltreatment includes sexual harassment.  In addition, he twice presented issues to be considered by the U. S. Army Court of Criminal Appeals, which on both occasions considered his entire record including the issues personally specified by him and affirmed the findings of guilty and the sentence.  It appears his contentions were finally and conclusively adjudicated in the court-martial appellate process and furnish no basis for recharacterization of the discharge.  Considering the totality of the circumstances in this case, no evidence has been submitted to justify granting clemency on the sentence.  The applicant’s recourse is to file an appeal to a Federal Court of competent jurisdiction.

3.  If the applicant desires to pursue a pardon, pardon issues are handled by the Office of the Pardon Attorney, Department of Justice.  He should contact the Pardon Attorney at the following address:  Office of the Pardon Attorney, 4th Floor, 500 First Street, NW, Department of Justice, Washington, DC  20530-0001 for further information.

4.  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___  __teo___  __bfh___  DENY APPLICATION

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

INDEX

CASE ID	AR2000047862	
SUFFIX		
RECON		
DATE BOARDED	20010130	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19980410	
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.		
3.		
4.		
5.		
6.