MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 February 1999                  
	DOCKET NUMBER:   AR1999014926

	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. Loren G. Harrell		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright 		Chairperson	
	Ms. Carol J. Suiter 		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:  That the findings of guilty and the sentence in his trial by general court-martial be set aside.

APPLICANT STATES:  Through a copy of his “Assignment of Errors and Brief on Behalf of Appellant” submitted on appeal to the United States Army Court of Military Review, that, in essence, he was wrongly accused of rape, the evidence against him was factually insufficient, and his Constitutional rights were violated.

EVIDENCE OF RECORD:  The applicant's military records and the record of his trial by court-martial show:

He enlisted in the Regular Army for 2 years and 21 weeks on 4 September 1992. Upon completion of his training, he was assigned to Fort Campbell, Kentucky, in early March 1993.  

On 26 May 1993, the applicant raped a 15-year old female virgin.  Immediately after the sexual assault, the victim ran home and notified neighbors.  She was taken to the Army hospital where doctors verified that she had been raped and anally sodomized a short time before.  Criminal investigators were called and the victim gave a detailed physical description of her attacker (to include the name on his battle dress uniform), his car, and the location of the attack.  The applicant was apprehended 11 days after the attack, immediately identified from a photo line-up, and charged with rape and sodomy.

The applicant was tried by a general court-martial on the charges of rape and sodomy.  Contrary to his plea of not guilty, he was found guilty of both charges on 29 September 1993 and sentenced to a dishonorable discharge, forfeiture of all pay and allowances, confinement for 9 years, and reduction to private (E-1).

On 23 August 1994, applicant’s counsel filed an Assignment of Errors and Brief on Behalf of Appellant and a motion for oral argument.  Oral arguments were presented before the United States Army Court of Criminal Appeals on 6 April 1995 and, on 19 April 1995, the Court affirmed the findings of guilty and the sentence.  On 20 July 1995, the United States Court of Appeals for the Armed Forces denied further review of the case.

The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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 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.  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.

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

___INW _  __CJS __  __VBC __ DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999014926	
SUFFIX		
RECON		
DATE BOARDED	19990211	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19950922	
DISCHARGE AUTHORITY	AR 635-200/3-10	
DISCHARGE REASON	A92.37	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	105.0100	
2.	110.0000	
3.		
4.		
5.		
6.