MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 May 2002
	DOCKET NUMBER:   AR2002068234

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Karen Y. Fletcher		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 (DD) be upgraded to a general, under honorable conditions discharge (GD).

APPLICANT STATES:  In effect, that in the last three years, he has become a model citizen, who has worked to provide for his family, which includes his wife and three children.  He claims that he has been in no trouble with the law, and has been working at the same job for over two years.  An upgrade to his discharge would mean a lot to his family and give them the opportunity to purchase a home.  He asks that consideration be given to the fact that he is doing the right thing and has adapted to civilian life, has paid for his actions, and would like to now move on with his life.  In support of his application he submits a copy of his separation document (DD Form 214).

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

On 4 March 1993, the applicant entered active duty in the Regular Army for 
3 years.  He was trained in and awarded military occupational specialty (MOS) 88H (Cargo Specialist).  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition and the highest rank he attained during his active duty tenure was private/E-2.

On 7 May 1994, the applicant was convicted by a general court-martial (GCM) of attempted rape and aggravated assault.  The resultant sentence included reduction to pay grade E-1, confinement for 6 years, and a DD.  On 31 January 1995, the convening authority approved the sentence and ordered all but the 
DD portion to be executed.

On 20 September 1995, the United States Army Court of Criminal Appeals examined the applicant’s record of trial and found it to be legally sufficient to support the findings of guilty and the resultant sentence.  

On 25 April 1996, the unexecuted DD portion of the applicant’s sentence was ordered executed and on 31 May 1996, he was discharged accordingly.  At the time of his discharge, he had completed a total of 11 months and 6 days of creditable active military service, and he had accrued a total of 843 days of time lost due to confinement, 89 days of which were subsequent to his normal expiration of term of service (ETS).  

Title 10 of the United States Code, section 1552 as amended does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR to only change a discharge if clemency is determined to be appropriate.

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 notes the applicant’s contention that his discharge should be upgraded because he has paid for his mistakes and based on his good post service conduct.  However, while the Board congratulates him on his post service good citizenship, it finds these factors are not sufficiently mitigating to warrant the requested relief.  

2.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.  In this case, the Board finds that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged. 

3.  In addition, the Board finds that the type of discharge received by the applicant appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service.  Therefore, the Board concludes that clemency is not warranted in this case.

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:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___MDM_  ___LE___  __KYF__  DENY APPLICATION

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

INDEX

CASE ID	A2002068234	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/23	
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	19960531	
DISCHARGE AUTHORITY	AR 635-200 paragraph 3-10 .  .  .  .  .  	
DISCHARGE REASON	GCM	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.0100	
2.		
3.		
4.		
5.		
6.