MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 March 2000                            
	DOCKET NUMBER:   AR1999031016

	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.

	Mrs. Judy Blanchard-Miller		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Van B. Cunningham		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.

APPLICANT STATES: In effect, that he is a model citizen; that he helps out in his community and that he is a good family man. 

EVIDENCE OF RECORD: The applicant’s military record shows:

On 26 September 1973, the applicant enlisted in the Regular Army for 3 years.  He completed the required training and was awarded military occupational specialty 71B10 (Clerk Typist).  The highest grade he achieved was pay grade
E-3.   

On 24 June 1975, the applicant was convicted by a general court-martial of assault with the intent to commit rape, by holding a knife to the victim’s chest, fondling her breast, throwing her to the floor, and sitting upon her body.  He was sentenced to a reduction to pay grade E-1, confinement at hard labor for 4 years, and to be discharged from service with a DD.  

On 14 August 1975, the sentence was approved by the convening authority.  The record of trial was forwarded to the Judge Advocate General of the Army for review by a board of review.  The United States Army Court of Military Review affirmed the sentence and the finding of guilty. The applicant petitioned the United States Court of Military Appeals for a grant of review.  On 6 August 1976, the United States Court of military Appeals denied the petition for grant of review. 

On 22 September 1976, the applicant was discharged, in pay grade E-1 under the provisions of the Army Regulation 635-200, chapter 11, as a result of a court-martial.  He had completed 1 year, 8 months and 20 days of active military service.

On 23 December 1976, the applicant was paroled, from the United States Disciplinary Barracks at Fort, Leavenworth, Kansas.  On 23 June 1979, the applicant, after complying with the requirements of his parole and having thereby completed the sentence to confinement was released. 

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.

DISCUSSION:

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 the aforementioned 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.  While the Board has taken cognizance of the applicant’s good post-service conduct; this factor does not warrant the relief requested.

4.  The applicant has failed to provide any basis for the Board to grant clemency in his case.

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

__rvo___  __mkp___  __vbc___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031016	
SUFFIX		
RECON		
DATE BOARDED	20000315	
TYPE OF DISCHARGE	(DD)	
DATE OF DISCHARGE	19760922	
DISCHARGE AUTHORITY		
DISCHARGE REASON	A68.03	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 	144.6803	
2.		
3.		
4.		
5.		
6.