MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            8 January 2002                  
	DOCKET NUMBER:   AR2001061369

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Terry L. Placek		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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 records be corrected to upgrade his dishonorable discharge to general, under honorable conditions.  He states that his discharge was improper, unjust and inequitable because:

The trial counsel didn’t prove any element of the charges for which he was accused.  The alleged victim admitted that she was not threatened, punched, kicked, bit or anything else that would constitute force, which is clearly an element, needed to prove rape.

She said that the sex was not consensual because she had been suffering from herpes symptoms and had not engaged in sex in at least 2 weeks.  The sheets for the night in question were sent to the lab and tested.  Semen was found in several areas of the sheets, but none of the semen matched him.  The presence of the semen shows she was sexually active, even though she testified that sex was too painful and that she had sex with multiple partners.

During the discovery phase of the trial, a document was uncovered which showed the alleged victim named another soldier as her “boyfriend”.  Since both were married, this was a cover-up to preclude adultery charges against both of them.

The applicant requested correction of his records by completing a Department of Defense (DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States).  This application was accepted in lieu of DD Form 149 (Application for Correction of Military Record under the provisions of Title 10, U.S. Code, Section 1552). 

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

On 30 October 1990, he enlisted in the Army.  He completed his required training and was awarded military occupational specialty 31K (Combat Signaler).  He was advanced to pay grade E-3 effective 1 October 1991.

On 26 July 1993, while serving in Alaska, he was convicted by a general court-martial (GCM) of rape on or about 10 February 1993.  His sentence consisted of a reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 8 years and to be dishonorably discharged.

On 14 July 1994, the Court of Military Review affirmed the findings of guilty and sentence.

On 4 November 1994, while confined at the Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 312 directed the dishonorable discharge be executed.

On 12 December 1994, Order 167-07 directed his dishonorable discharge effective 16 December 1994.

On 16 December 1994, he was dishonorably discharged, in pay grade E-1, under Army Regulation 635-200, based on the result of court-martial.  His separation document indicates he had 2 years, 8 months and 18 days of creditable service and 1 year, 4 months and 29 days of lost time.

Army Regulation 15-180 provides for petitioning the Army Discharge Review Board (ADRB), using DD Form 293, for upgrade of the characterization for discharge.  Title 10, U. S. Code, section 1553 (a) and the regulation specifies that the ADRB may not consider an appeal for an upgrade of a discharge by sentence of a GCM.

The statutory authority under which this Board was created (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.  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. 

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 16 December 1994, the date he was dishonorably discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 16 December 1997.

The application is dated 6 August 2001 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION: The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of the case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit the application within the three-year time limit.  

BOARD VOTE:

________  ________  ________ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

_tlp_______  _rwa____  __lls___ CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001061369	
SUFFIX		
RECON		
DATE BOARDED	20020108	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144	
2.		
3.		
4.		
5.		
6.