MEMORANDUM OF CONSIDERATION


	IN THE CASE OF: 

	BOARD DATE:                              
	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:




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 and 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 them to submit written statements, which did not have the appropriate impact; that his medical condition, which was the result of an accident, got progressively worse, and while there appeared to be a chance for recovery initially, it ultimately lead to amputation; and that his service was filled with accomplishments and achievements to include combat service which he feels warrants 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 30 December 1985 the applicant reenlisted for his final period of service while assigned to Fort Riley, Kansas.  At the time of his last reenlistment he had completed 7 years, 4 months, and 14 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 record indicates the applicant had earned the following awards and decorations: 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 applicant did have a good service record and had participated in Operation Desert Storm for 7 months.  There is no record of disciplinary infractions prior to the incidents leading to the applicant’s court-martial and ultimate 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 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 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; forfeit all pay and allowances; to be confined 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 issued a DD after completing 15 year, 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.  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 Board takes cognizance of the applicant's physical impairments prior to and during his court-martial; that character witnesses for him were deployed; that his medical condition which was the result of an accident got progressively worse ultimately leading to amputation; and that his service was filled with accomplishments and achievements to include combat service.  However, the Board found none of these factors, either individually or in sum, sufficiently mitigating to warrant the relief requested.

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 the aforementioned 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

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director