MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 August 2002                   
	DOCKET NUMBER:   AR2002074239

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Melinda M. Darby		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Curtis L. Greenway		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 dismissal be upgraded to an honorable discharge, and that the narrative reason for separation be changed to "sufficient service for retirement."

APPLICANT STATES:  In effect, that he is the victim of error and injustice in that he did not receive "fair, impartial and expeditious due process of law."  He adds that he was dismissed effective 10 January 2000, but remained on excess leave until April 2002.  It was only after he questioned his status that PERSCOM (US Total Army Personnel Command) finally forwarded his DD Form 214, Certificate of Release or Discharge From Active Duty.

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

He served as an enlisted soldier from 19 December 1975 through 9 August 1984. On 10 August 1984, he was commissioned and appointed as a second lieutenant in the Quartermaster Corps.  On 17 July 1992, he was assigned to Fort Gordon, Georgia, as the company commander of Company C, 442nd Signal Battalion.

On or about 28 February 1994, the applicant relinquished command and was assigned Fort McPherson, Georgia, and attached to Company A, 551st Signal Battalion, Fort Gordon.  On 29 November 1994, court-martial charges were preferred against the applicant for the following:  violation of Article 93 (cruelty and maltreatment), Uniform Code of Military Justice (UCMJ); violation of Article 133 (conduct unbecoming an officer and gentleman), UCMJ; and violation of Article 134 (fraternization), UCMJ.

The applicant was tried by a general court-martial between 12 April and 24 May 1995.  Although he pleaded not guilty to all charges and specifications, he was convicted of violating Article 93 by making repeated sexual comments to a subordinate member of his command; violating Article 133 by wrongfully and dishonorably going to a hotel and having sexual intercourse with a woman, not his wife, while she was a member of his command; and violating Article 134 by fraternizing with an enlisted person on terms of military equality.  Adjudged on 24 May 1995, he was sentenced to be dismissed from the service.

The applicant was placed on excess leave pending appellate review of his conviction and sentence.  On 14 November 1996, the United States Army Court of Criminal Appeals (USACCA) affirmed the findings of guilty and the sentence in the applicant's case.  The case was appealed to the United States Court of Appeals for the Armed Forces and, on 2 September 1998, that court affirmed the decision of the USACCA.

On 23 December 1999, the Assistant Secretary of the Army for Manpower and Reserve Affairs ordered the applicant's sentence executed.  On the same date, the Chief of Staff of the Army directed that the applicant cease being an officer of the United States Army at midnight 10 January 2000.  On that date, the applicant was separated under other than honorable conditions.  He had 15 years, 5 months, and 1 day of creditable active commissioned service and 8 years, 6 months, and 22 days of prior creditable enlisted service.

Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, Section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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.

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.  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.

2.  The applicant's contentions relate to evidentiary and procedural matters that were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.

3.  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.

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

__mmd___  __rwa___  __clg___  DENY APPLICATION

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

INDEX

CASE ID	AR2002074239	
SUFFIX		
RECON		
DATE BOARDED	20020820	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	20000110	
DISCHARGE AUTHORITY	AR 600-8-24	
DISCHARGE REASON	A60.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.	110.00	
3.		
4.		
5.		
6.