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ARMY | BCMR | CY1997 | 9710347
Original file (9710347.rtf) Auto-classification: Denied

MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
         BOARD DATE: 1 April 1998
         DOCKET NUMBER: AC97-10347

         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. The following members, a quorum, were present:
Mr. Calvin M. Fowler Chairperson
Mr. Ernest M. Willcher Member
Ms. Tina L. Street Member

         Also present, without vote, were:
Mr. Loren G. Harrell Director
Mr. Joseph A. Adriance Analyst

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

          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 to a general/under honorable conditions discharge (GD).
APPLICANT STATES : In effect, that his DD was inequitable because it was based on an isolated incident in over
15 years of service; that his physical impairments prior to and during his court-martial were not considered; that he should have been given a medical discharge; that his character witnesses were deployed and not able to personally appear at the court-martial, forcing him to rely on written statements, which did not have the appropriate impact; that his medical condition which was the result of an accident got progressively worse and ultimately lead to amputation; and that his service was filled with accomplishments and achievements to include combat service which warrant an upgrade to his discharge.

 COUNSEL CONTENDS : The applicant’s counsel has submitted no additional contentions for consideration in this case.

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

On 9 May 1991 the applicant reenlisted for 6 years, his final period of service, while assigned to Fort Stewart, Georgia. At the time of his last reenlistment he had completed 12 years, 8 months, and 23 days of honorable service; held military occupational specialty (MOS) 19K30 (M1A1 Abrams Tank Commander), attained the rank of staff sergeant/E-6; and had completed two overseas tours of duty.

The applicant’s prior service record also included 7 months combat service in southwest Asia, during operation Desert Storm, and indicates he had earned the following awards: the Army Service Ribbon; the Overseas Service Ribbon; four Army Achievement Medals; three Army Commendation Medals; four Good Conduct Medals; the National Defense Service Medal; the Southwest Asia Service Medal/w two bronze service stars; the Noncommissioned Officer Professional Development Ribbon with numeral-3 which represents completion of three levels of the Noncommissioned Officer Education System (NCOES); and a German Marksmanship Badge.

The record for the period of service under review includes no additional documented acts of valor, achievement, or service warranting special recognition; in addition, there is no indication of disciplinary infractions prior to the incidents which ultimately lead to the applicant’s court-martial and discharge.

On 22 October 1993 the applicant was tried by general court-martial for three offenses which included 12 specifications. The first charge was for violation of Article 120 of the UCMJ for two counts of rape and two counts of carnal knowledge; the second charge was for violation of Article 125 for three counts of sodomy; and the third charge was for violation of Article 134 for three counts of committing an indecent act with a child under the age of 16 and two counts of taking indecent liberties with a child under the age of 16. He was found guilty of two counts of rape; two counts of sodomy; two counts of committing an indecent act with a child under the age of 16; and two counts of taking indecent liberties with a child under the age of 16.
The resultant sentence from the applicant’s court-martial conviction was reduction in grade to private/E-1; forfeiture of all pay and allowances; confinement for 24 years; and to be dishonorably discharged from the service. The convening authority agreed, under the terms of a pretrial agreement concerning the sentence, to disapprove any confinement in excess of 15 years and disapprove any forfeiture in excess of $214.80 per month.

The court-martial was promulgated and the sentence approved in General Court-Martial Order Number 45, Department of the Army, Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart, Fort Stewart, Georgia 31314, dated 15 December 1993. General Court Martial Order Number 311, Headquarters, Fort Leavenworth, Kansas, dated 4 November 1994, affirmed the court-martial and directed the dishonorable discharge be executed.

Accordingly, on 30 December 1994 the applicant was discharged after completing 15 years, 2 months, and 6 days of active military service and accruing 425 days of time lost due to confinement.

 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. The Board noted the applicant’s contentions, and acknowledges that he had served honorably prior to the incidents leading to his discharge. However, based on the evidence of record, the Board determined that the trial by court-martial was warranted based on the gravity of the offenses with which the applicant was 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 contention referring to the availability of character witnesses during his court-martial proceeding relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for clemency or a recharacterization of the discharge.

3. Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.

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

 DENY APPLICATION




                                                      Karl F. Schneider
                                                       Acting Director

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