BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150013993 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150013993 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150013993 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his dishonorable discharge to an honorable discharge. He further requests removal from the South Carolina Sex Offender Registry List. 2. The applicant states, in effect, he was unlawfully convicted. There were many instances of reasonable doubt that he raped his accuser to include medical evidence, which never proved he penetrated his accuser. He contends his accuser made false statements under oath and presented paid testimony from a psychology professional, which was biased, prejudicial, and without merit. He further contends another expert witness provided by his accuser unlawfully led the jury to believe the applicant committed rape despite providing physical examinations of the accuser, which showed no evidence of rape. He also believes the jury members that tried him did so "without jurisdiction." 3. The applicant provides a plethora of documents pertaining to his conviction to include: * Federal Crimes History Report * Doctors Exams * Medical Reports * Investigative Reports * Records of Court-Martial * Appeals CONSIDERATION OF EVIDENCE: 1. 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. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's request to remove his name from the South Carolina Sex Offender Registry List is not within the purview of this Board. Therefore, it will not be addressed further in these proceedings. 3. The applicant enlisted in the Regular Army on 24 June 1986. He completed training and he was awarded military occupational specialty 94B (Food Service Specialist). Upon assignment to Fort Campbell, Kentucky, he successfully completed the Army's two-week Air Assault School. 4. General Court-Martial Order Number 42, issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky, dated 25 August 1989, shows the applicant pled not guilty but was found guilty to court-martial charges preferred against him for the charges and specifications of: a. Charge I. Article 120. Specification: rape of a female under 16 years of age and not his wife, on or about 7 August 1988; and b. Charge II. Article 134. Specification: wrongfully having sexual intercourse with a girl not his wife, on or about 7 August 1988. 5. The applicant was sentenced to forfeit all pay and allowances, to be confined for a period of 40 years and, to be discharged from the service with a Dishonorable Discharge. The sentence was adjudged on 9 May 1989. However, only so much of the sentence as provides for confinement for a period of 30 years, total forfeiture of all pay and allowances and a Dishonorable Discharge was approved and, except for the part of the sentence extending to a Dishonorable Discharge, was to be executed. 6. The applicant's record contains a Memorandum Opinion, issued by the U.S. Army Court of Military Review, dated 30 July 1991, which states the general court-martial of officer and enlisted members convicted the appellant, contrary to his pleas, of rape and adultery, in violation of Articles 120 and 134, Uniform Code of Military Justice. a. He was sentenced to a dishonorable discharge, confinement for 40 years and forfeiture of all pay and allowances. The convening authority reduced the confinement portion of the sentence to 30 years, and otherwise approved the sentence. The appellant contends, inter alia, that he cannot be convicted of both rape and adultery for the same act of sexual intercourse. They agreed. As the military judge instructed the court members that these two offenses were multiplicious for sentencing purposes, we find that the appellant suffered no prejudice because the offenses were also multiplicious for findings purposes. b. They also considered the remaining assignments of error as well as those matters personally asserted by the appellant pursuant to United States v. Grostefon, and find them to be without merit. c. The findings of guilty of Charge II and its specification are set aside and Charge II is dismissed. The remaining findings of guilty and the sentence are affirmed. 7. General Court-Martial Order Number 431, issued by U.S. Disciplinary Barracks, U.S. Army Combined Arms Command and Fort Leavenworth, Fort Leavenworth, Kansas, dated 16 December 1993, states the findings of guilty of Charge II and its specification are set aside, and Charge II is dismissed. The remaining findings of guilty and the sentence to dishonorable discharge, total forfeiture of all pay and allowances on 9 May 1989, as promulgated in General Court-Martial Order Number 42, dated 25 August 1989, has been finally affirmed. Article 71(c) having been complied with, the dishonorable discharge will be executed. All rights, privileges, and property of which the accused has been deprived by virtue of the findings of guilty so set aside will be restored. The applicant will be confined in the U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, and the confinement will be served therein, or elsewhere as competent authority may direct. 8. The applicant was discharged from the Army on 7 January 1994. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of court-martial with a dishonorable discharge. This document further shows he completed a total of 2 years, 10 months, and 15 days of net active service during this period. He had lost time from 9 May to 23 June 1989 and after normal expiration term of service from 24 June 1989 to 7 January 1994. 9. The applicant provided numerous documents, many incomplete, which were taken into consideration as part of his general court-martial. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 of the regulation, then in effect, provided that a Soldier would be given a dishonorable discharge pursuant only to an approved sentence to a general court-martial or special court-martial. The appellate review must have been completed and the affirmed sentence ordered duly executed. This regulation also provides guidance on characterization of service. a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR 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: 1. The evidence of record shows the applicant was convicted by a general court-martial of one specification of rape of a female under 16 years of age who was not his wife. He was discharged pursuant to an approved sentence of a general court-martial and, after one charge was removed, the findings of guilt and the sentence were affirmed. Any issues he had with his trial and the evidence presented against him were matters he had the opportunity to address on appeal. This Board does not retry court-martial cases. 2. Based on the available evidence of record and the evidence provided by the applicant, his trial by court-martial was warranted by the gravity of the offense charged. His conviction and dishonorable discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted. 3. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013993 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013993 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2