MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 September 2002
	DOCKET NUMBER:   AR2002069097

	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. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. Ronald E. Blakely		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 the charges he was convicted of be dismissed in whole or in part.  If that is not possible, he requests that his dishonorable discharge be upgraded.

APPLICANT STATES:  In effect, that had the sheets, blankets, and pants taken for evidence been sent to the forensic laboratory for DNA tests, reasonable doubt as to his guilt would have been found and he would not have been convicted.  As for the desertion charge, he only ran because he was afraid of even being accused of the offenses for which he was tried.  His behavior at the Regional Corrections Facility was almost perfect and he earned about 150 days off his sentence.  As supporting evidence, he provides pages 191 - 199 of the testimony from his Report of Trial and his Certificate of Release or Discharge from Active Duty, DD Form 214.

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

He enlisted in the Regular Army on 22 May 1997.  He completed basic training and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).

On 9 February 1999, the applicant was convicted by a general court-martial of attempted sodomy by force and without consent and desertion with intent to remain away permanently from on or about 29 March 1998 until apprehended on or about 14 October 1998.  He was sentenced to be reduced to pay grade E-1, to forfeit all pay and allowances, to be confined for a period of 4 years, and to be discharged with a dishonorable discharge.

The extract from the Report of Trial provided by the applicant was taken from the evidence custodian of the U. S. Army Criminal Investigation Command's Fort Benning office.  He testified that the jeans, blankets, and pants taken from the scene and/or victim were gathered as evidence and were never sent to the U. S. Army Criminal Investigation Laboratory to obtain trace evidence.

Counsel for the applicant appealed that the evidence was factually and legally insufficient to support the applicant's conviction for attempted forcible sodomy.  On 13 October 2000, the U. S. Army Court of Criminal Appeals found that the evidence was factually and legally sufficient to establish that the applicant attempted to commit forcible sodomy and affirmed the findings and the sentence. 

On 20 November 2000, the applicant petitioned the U. S. Court of Appeals for the Armed Forces for a review of his conviction.  On 6 March 2001, the U. S. Court of Appeals for the Armed Forces denied the petition for grant of review.  

On 4 December 2001, the applicant was discharged with a dishonorable discharge pursuant to his conviction by court-martial. 
Title 10, U.S. Code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.

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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's contentions relate to evidentiary and procedural matters which should have been finally and conclusively adjudicated in the court-martial appellate process.  It appears that his counsel did not bring the matter of DNA evidence or witnesses up in appeals; however, there is no evidence to show his counsel was negligent in failing to raise this issue.

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

__JHL__  __MMD__  ___REB__  DENY APPLICATION

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

INDEX

CASE ID	AR2002069097	
SUFFIX		
RECON		
DATE BOARDED	2002/09/19	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	2001/12/04	
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.01	
2.	110.00	
3.		
4.		
5.		
6.