MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 April 2002
	DOCKET NUMBER:  AR2001061180

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Hubert O. Fry		Member	
	Mr. Thomas E. O’Shaughnessy		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:  Reconsideration of his earlier application to correct his military records by upgrading his undesirable discharge.

APPLICANT STATES:  In effect, that his administrative separation was accomplished outside the applicable regulations at that time.  He contends the administrative authority went beyond the provisions of Army Regulation 635-206.

The applicant also states that the Board recognized he was inducted for two years and his normal expiration term of service (ETS) would have been 1 April 1972.  He contends that the evidence shows his trial was dismissed and that his arrest and detention were not due to misconduct.  He claims that he did not have any lost time prior to 1 April 1972 and his lost time should be restored per Department of Defense Management Regulation [correctly known as the Department of Defense Financial Management Regulation] Volume 7-4, Paragraph 010202C.

The applicant also asserts that, on 17 August 1971, his military pay, allotments, rations, and bonds were stopped by the Army.  He contends that this pay is owed to him plus interest pursuant to Uniform Code of Military Justice rules in effect at the time.  

The applicant also contends that, when he was informed and recommended for discharge action under the provisions of Army Regulation 635-206, he requested military counsel to represent him and this would have cleared up this false conviction.  When the commander, along with the board of officers, recommended him for an “undesirable discharge”, they ignored the fact that his case was reversed, removed, and dismissed from the Supreme Court.  In conclusion, he states that he did receive two Article 15’s while he was in the Service, however, other veterans have been honorably discharged with Article 15’s in their records.  

In support of his application, the applicant submitted a copy of Docket Number AR2000050399 considered by the Army Board for Correction of Military Record’s (ABCMR) on 12 April 2001 and copies of three court documents pertaining to case Number 71-2241 (also identified as Criminal Action 71-108), District Court for the State of Alaska, Fourth Judicial District at Fairbanks, Alaska.  The applicant also submitted a copy of a mandate from the Supreme Court of the State of Alaska reversing the judgment of the Superior Court of the Fourth Judicial District and remanding the case for a new trial.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in the decisional document prepared to reflect the consideration of Docket Number AR2000050399 by the ABCMR on 12  April 2001.

The documents submitted by the applicant are not new evidence.  The same documents and/or information were contained in the applicant’s service personnel records on 12 April 2001 when the ABCMR considered Docket Number AR2000050399.

The applicant’s contention that his administrative separation was accomplished outside the applicable regulations in effect at that time is a new argument and will be considered by the Board.

The applicant’s contention that he did not have any lost time prior to 1 April 1972 and this time should be restored per Department of Defense Financial Management Regulation, Paragraph 010202C, is a new argument and will be considered by the Board.

The applicant’s contention that, in effect, the Army erroneously took pay away from him for absence due to civil confinement and now owes him that pay plus interest pursuant to Uniform Code of Military Justice rules in effect at the time is a new argument and will be considered by the Board.

The contention that the applicant’s commander and a board of officers, ignored the fact that his case was reversed, removed, and dismissed by the Alaska Supreme Court is a new argument and will be considered by the Board.

Records show that the applicant was in civil confinement from 10 to 11 May 1971 based on pending charges of rape in Case Number 71-2241 (also cited as Case Number 71-108) and was ordered released on 21 May 1971 by a District Court Judge of the Fourth Judicial District at Fairbanks, Alaska.

Documents provided by the applicant show that he and another person were indicted on 10 August 1971 for the crime of rape which occurred on or about 17 April 1971 in the Fourth Judicial District in violation of Alaska Statute 11.15.120.  Records show that, on or about 17 August 1971, the applicant was arrested by civil authorities in Fairbanks, Alaska, for assault and rape and was returned to military control on 2 September 1971.  He was convicted in Case Number 71-108 by the Superior Court of the State of Alaska, Fourth Judicial District, on 22 October 1971 for the crime of rape.

Court documents in the matter of Case Number 71-108 from the applicant’s service personnel records show that he was convicted of rape and sentenced to four years in the custody of the Commissioner of Health and Welfare of the State of Alaska.  Court records also show that the applicant appealed his conviction to the Supreme Court of the State of Alaska on 3 December 1971.

Court records of the United States District Court for the District of Alaska show that the applicant and another person were indicted by a Grand Jury on or about 17 November 1971 for having carnal knowledge of a female forcibly and against her will on or about 9 August 1971 at Fort Wainwright, Alaska, in violation of Title 18, United States Code, Section 2031.  In this case, which is identified as Case Number F-38-71, the applicant was found guilty of rape on 25 May 1972 and was sentenced to imprisonment for 8 1/2 years to be served concurrently “with any sentence imposed by the State of Alaska that is presently being served by the defendant.”  Records also indicate that the applicant was subsequently incarcerated at the Federal Correctional Institution at Lompoc, California.

Military records show that the applicant’s status was listed as civil confinement from 19 January 1972 until 17 September 1973 when he was discharged from the Army.  

By letter dated 9 February 1973, the Adjutant General of the U.S. Army Enlisted Support Center notified the Commanding General of the Sixth United States Army that the applicant was in civil confinement and requested the status of the applicant.  This letter also drew attention to the provisions of Army Regulation 635-206.

On 2 April 1973, the United States Court of Appeals for the Ninth Circuit considered appeal of the applicant’s conviction in Case Number F 38-71 (also now cited as Case Number 72-2532) heard on the transcript of the Record.  The United States Court of Appeals for the Ninth Circuit affirmed the judgment of the United States District Court for the District of Alaska.

The applicant acknowledged in his own hand that he received notification on 10 April 1973 of the proposal to discharge him from the Army under the provisions of Army Regulation 635-206 due to civil conviction for rape.  

In a 10 April 1973 response to the Adjutant General of the U.S. Army Enlisted Support Center, the commanding officer of the U.S. Army Garrison at Fort Wainwright, Alaska, stated that a recommendation for separation of the applicant due to civil confinement had been prepared in anticipation of final appellate action in the applicant’s state conviction.  The letter also advised that the applicant, who was at the Federal Correctional Institution at Lompoc, California, had been notified of this action.

On 12 April 1973, the applicant indicated his election to have a military counsel to represent him before a board of officers and to submit statements in his own behalf which the applicant indicated he would furnish to his appointed counsel.  

The applicant’s service personnel records contain documents from the proceedings of the board of officers, among which are two statements written in the applicant’s own hand to his counsel regarding his elimination from the Army.  Both statements are dated 11 April 1973.

On 24 April 1973, the Supreme Court of the State of Alaska considered the applicant’s appeal in Case Number 71-108 and reversed the decision of the Superior Court for the State of Alaska, Fourth Judicial District, and remanded the case for a new trial.  As a result, the Superior Court for the State of Alaska, Fourth Judicial District, filed notice of the dismissal of Case Number 71-108 and directed that the “defendants be released from custody in this case only.”

On 30 April 1973, the United States Court of Appeals for the Ninth Circuit denied the applicant’s extension of time to seek rehearing in Case Number 72-2532 (also cited as Case Number F-38-71).

By letter dated 9 May 1973, the Army colonel in command of Fort Wainwright, Alaska, advised the Commanding General of U. S. Army, Alaska, that the applicant had been convicted for two offenses of rape, one in the Superior Court of the State of Alaska, Fourth Judicial District, and the other in the United States District Court for the District of Alaska.  This letter stated that the Supreme Court of the State of Alaska had reversed the decision of the Superior Court and remanded the case for a new trial, that the applicant was sentenced by the U. S. District Court of the District of Alaska to 8 1/2 years which the applicant was currently serving at Lompoc, California, and that the United States Court of Appeals had affirmed the judgment of the U. S. District Court in the applicant’s case.  Accordingly, the commanding Officer of Fort Wainwright recommended that the applicant be eliminated from the service under the provisions of Army Regulation 635-206 with an undesirable discharge.

On 11 June 1973, the applicant was notified that a board of officers would be convened under the provisions of Army Regulation 15-6 to determine his eligibility for elimination from service.  The applicant was also advised in this letter that the recorder for the board of officers would arrange for witnesses to be present.  

By letter dated 28 June 1973, the applicant was officially notified that the board of officers would convene on 20 July 1973 at 1030 hours in the Fort Wainwright Court Room at Fort Wainwright, Alaska.  This letter also advised that, in the applicant’s absence from the hearing, he would be represented in this hearing by military counsel.

Documents in the applicant’s service personnel records show that the hearing by the board of officers was called to order at 0830 hours on 20 July 1973.  After appropriate swearing in of the board and the recorder and explanation of rights of the applicant in the case, evidence and arguments were presented.  At the conclusion of closing argument, the board of officers considered all matters present in this case and voted unanimously that the applicant should be discharged with an undesirable discharge.

The appropriate separation authority approved the recommendation of the board of officers and directed the applicant be discharged under the provisions of Army Regulation 635-206 due to a civil conviction with issuance of an Undesirable Discharge Certificate.  

The applicant’s DD Form 214 shows that he was discharged effective 17 September 1973 under other than honorable conditions.  At the time of this discharge, the applicant had 1 year, 8 months and 28 days of creditable service and over 19 months of civil confinement.

Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph 37 of the regulation provided, in pertinent part, that the convening authority is authorized to order discharge or direct retention in the military service when disposition of an individual has been made by a domestic court of the United States or its territorial possessions.  Specifically, the regulation provided for elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.  Separation with an undesirable discharge was normally considered appropriate under this regulation.

Paragraph 010202C of Department of Defense Financial Management Regulation Volume 7A states that enlisted members must make up any lost time.  The regulation states that the time a member is held in a non-duty status while awaiting trial, as well as the time during trial, does not count towards making up lost time and is not creditable.  Table 3-3 of the regulation further states that when a member is confined by civil authorities and the charges are dismissed and it is clear that arrest and detention were not due to a member’s misconduct, then the absence may be excused as unavoidable.
Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration.  This includes but is not limited to any facts or arguments as to why relief should be granted.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than one year after the Board’s original consideration or after the Board has already reconsidered the case.  In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision.  If the staff finds such evidence, the case will be resubmitted to the Board.  If no such evidence is found, the application will be returned without action.

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 considered the applicant’s contentions that his administrative separation was accomplished outside the applicable regulations and the administrative authority went beyond the provisions of Army Regulation 635-206.  Specifically, he contended that the ABCMR in Docket Number AR2000050399 recognized he was inducted for two years and his normal expiration term of service (ETS) would have been 1 April 1972.  He contends that the evidence shows his trial was dismissed and that his arrest and detention were not due to misconduct; therefore, the applicant infers that he should have been separated from the Army on 1 April 1972 with an honorable discharge.

2.  Contrary to the applicant’s contention, this Board finds that the applicant’s separation was conducted in accordance with Army regulations in effect at the time of his civil conviction and incarceration based on the following.

	a.  The Board noted that the applicant was charged with two crimes of rape and was convicted in a State Court on for one offense and in Federal Court for the other offense.  Evidence of record shows that the applicant was convicted on 22 October 1971 in State Court and convicted on 25 May 1972 in Federal Court. 

	b.  The Board noted that, on 24 April 1973, the Supreme Court of Alaska reversed the  decision State Court and remanded the case for retrial.  Further, the Board noted the argument by the applicant that he should have been honorably discharged by the Army after this case had been overturned because his ETS was 1 April 1972.

	c.  However, this Board finds that, at the time the Supreme Court of Alaska overturned the decision of the State Court the applicant had already been sentenced and confined in a Federal facility for the second offense of rape.  It was also noted that, in overturning this case, the judge of the Superior Court of the Fourth Judicial District specifically indicated that the “defendants be released from custody in this case only,” thereby indicating that that the applicant would remain in confinement based on the Federal Court conviction.  Therefore, there was no basis for the Army to honorably separate the applicant on 1 April 1972 in view of his continued civil confinement.

	d.  Records show that the applicant was properly notified of intent to separate him under the provisions of Army Regulation 635-206, that he was afforded the opportunity to have his case considered by a board of officers and to be represented by counsel, that his case was heard by a board of officers, and that only after receiving the recommendations of the board of officers, did the appropriate separation authority direct the applicant’s discharge.  

	e.  As a result, this Board finds the discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.

3.  The Board considered the applicant’s contentions that he did not have any lost time prior to 1 April 1972 and his lost time should be restored per Department of Defense Financial Management Regulation, Volume 7A, Paragraph 010202C.  

4.  This Board finds that the applicant’s argument that all of his lost time should be excused as unavoidable because the Supreme Court of Alaska overturned the decision of the Superior Court of the Fourth Judicial District is without merit based on the following.

	a.  The Board noted Table 3-3 of Department of Defense Financial Management Regulation Volume 7-4, Paragraph 010202C, states in part that when a member is confined by civil authorities and the charges are dismissed and it is clear that arrest and detention were not due to a member’s misconduct, then the absence may be excused as unavoidable.
	b.  The Board also noted that the Supreme Court of Alaska overturned the decision of the Superior Court of the Fourth Judicial District and remanded the case for a new trial.  

	c.  It is clear to this Board that the applicant’s arrest and detention were due to his misconduct, rape in this specific case.  Based on the decision of the Alaska Supreme Court to remand the case for retrial, it is equally clear that the applicant’s conviction was overturned because of error in the Superior Court proceedings, not because the applicant did not commit the crime or that he was found innocent of the crime.

	d.  Based on these facts, this Board finds that there is no basis to excuse his lost time as a result of his absence due to civil confinement or restore any pay lost as a result of his absence due to civil confinement.

5.  The Board considered the applicant’s contentions that, ”when he was informed and recommended for discharge action under the provisions of Army Regulation 635-206, [he] requested Military Counsel to represent him and this would have cleared up this false conviction.  When the Commander, along with the Board of Officers, recommended [him] for an Undesirable Discharge, they chose to ignore the fact that his case was reversed, removed, and dismissed from the Supreme Court.”  

6.  This Board finds the applicant’s contention that the reversal of his State Court conviction was ignored by the chain of command and the board of officers are not supported by the evidence of record as follows.

	a.  This Board noted that applicant received due process and was properly represented throughout the discharge process.  He was properly notified of the proposed separation action, he was represented by counsel before a board of officers and he submitted statements on his own behalf.  His counsel obtained numerous statements of support from family, friends, soldiers and personnel at the Federal Correctional Institution at Lompoc, California.  The counsel presented matters on the applicant’s behalf and made closing arguments.

	b.  Contrary to the applicant’s contention, the discharge proceedings show that the board of officers, his counsel, the convening authority for the board of officers and the separation authority knew that the Alaska Supreme Court overturned the judgment of the Superior Court of the Fourth Judicial District and remanded the case for retrial.  Further, the records show that the unit commander, the convening authority and the separation authority knew this over two months prior to the date on which the board of officers was convened.  
	c.  This Board also noted that the entire chain of command knew that the applicant had been charged and convicted in Federal Court and incarcerated for a second offense of rape.  Therefore, the applicant’s argument that the unit commander and the board of officers “chose to ignore the fact that his case was reversed, removed, and dismissed from the Supreme Court” is not relevant to the decision of the board of officers.

	d.  Further, this Board determined that records clearly show the applicant was separated on the basis of civil confinement resulting from the Federal conviction for rape; therefore, the Alaska Supreme Court’s reversal of the judgment of the Superior Court of the Fourth Judicial District of Alaska is not a basis to grant any of the relief sought by the applicant.

	e.  Based on these facts, this Board finds that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

7.  This Board noted the applicant’s concluding statement that he received two Article 15’s while he was in the service and that other veterans have been honorably discharged with Article 15’s in their records.  This Board agrees that other veterans have received honorable discharges in spite of the fact that they Article 15’s in their records.  However, the inference by the applicant that he should receive an honorable discharge because he only had two article 15’s in his records at the time of his separation is without merit and ignores the facts in this case.  The applicant, at the time of his separation, not only had Article 15’s in his records, but he also had a Federal conviction for rape in his records.  Further, the applicant requested and received a hearing before a board of officers and , in the judgment of the chain of command and the board of officers, the applicant’s record of nonjudical punishment and his Federal conviction warranted the undesirable discharge which he received, not an honorable discharge. 

8.  Based on all of the foregoing, this Board has determined that the applicant has failed to provide conclusive evidence and/or compelling argument which are sufficient as a basis for this Board to reverse the decisions of the ABCMR in Docket Number AR2000050399 on 12 April 2001.  

9.  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 either requirement.

10.  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

__TES__  __HOF___  __AAO__  DENY APPLICATION

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

INDEX

CASE ID	AR2001061180	
SUFFIX		
RECON		
DATE BOARDED	20020430	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR CHUN	
ISSUES         1.	110.0000.0000	
2.		
3.		
4.		
5.		
6.