MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 March 2003
         DOCKET NUMBER: AR2003083665

         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. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Thomas A. Pagan		Chairperson
Mr. Roger W. Able		Member
Mr. John A. Kelly		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)

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APPLICANT REQUESTS: In effect, that his dishonorable discharge (DD) be upgraded to an honorable discharge (HD).

APPLICANT STATES: In effect, that he proudly served in the Army for 11 years and completed his first enlistment and extensions with no problems. He states that during his second enlistment, he encountered problems with a sexual addiction that he did not have the experience to handle, and as a result he received a DD and spent six years at Fort Leavenworth, Kansas, for sexual misconduct. He states that subsequent to his discharge, he has completed treatment for his sexual addictions, and he also teaches in a recovery setting for these maladies. He concludes that he would very much appreciate an upgrade of his DD at this time. In support of his application, he provides a copy of a certificate of completion from the Reduction of Sexual Victimization Program (RSVP), which was a 12 months treatment program, and two letters of support from officials of this program.

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

He served on active duty for 10 years, 11 months, and 4 days, from 14 July 1977 through 2 June 1989, at which time he received a DD as a result of a general court-martial (GCM) conviction and sentence.

The applicant’s record shows that during his active duty tenure he earned the following individual awards: Army Good Conduct Medal (3^rd Award); Army Achievement Medal (2^nd Award); and Army Commendation Medal. There are no other acts of valor, significant achievement, or service warranting special recognition on file in his record. In addition, with the exception of the offenses for which he was convicted by a GCM and ultimately discharged, there are no disciplinary infractions documented in his record.

On 18 June 1988, the applicant was convicted by a GCM of the following offenses: two specifications of attempted rape; three specifications of sodomy; two specifications of making false sworn statements; and six specifications of indecent acts with a female under sixteen years of age. The resultant sentence included a reduction to the grade of private/E-1, forfeiture of all pay and allowances, a dishonorable discharge, and confinement for twenty-two years.

On 15 September 1988, in GCM Order Number 44, issued by Headquarters,
US Army Armor Center and Fort Knox, Fort Knox, Kentucky, the convening authority approved so much of the sentence that provided for reduction to the grade of private/E-1, forfeiture of $335.00 of pay per month for ten years, a dishonorable discharge, and confinement for ten years, and it was directed that all of the sentence, with the exception of the DD, be executed.

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On 10 January 1989, the United States Army Court of Military Review affirmed the GCM guilty findings and affirmed so much of the sentence that provided for a DD, confinement for ten years, and reduction to the grade of private/E-1. On
9 March 1989, the United States Court of Military Appeals considered the petition for grant of review of the decision of the United States Army Court of Military Review on the applicant’s case, and it denied this petition.

On 8 May 1989, GCM Order Number 135, issued by the United States Disciplinary Barracks, U.S. Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, ordered the DD portion of the applicant’s sentence executed, Article 71c of the Uniform Code of Military Justice (UCMJ) having been complied with.

On 2 June 1989, the applicant was discharged with a DD under the provisions of chapter 3, Army Regulation 635-200, as a result of court-martial. At the time, he had completed a total of 10 years, 11 months, and 4 days of creditable active duty service.

The supporting letters from RSVP officials provided by the applicant attest to fact that he received counseling for his sexual misconduct subsequent to his discharge, and that his behavior and attitude have changed for the positive in the 13 months he was associated with the program. They also indicate that the applicant wishes to work in the counseling field and to further his education to attain that goal. Both officials recommend that the applicant’s discharge be upgraded.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a soldier will be given a dishonorable or bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed.

Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

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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 evidence of record confirms that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

2. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

3. The Board carefully considered the applicant’s entire record of service and his post service accomplishments, as evidenced in the supporting letters provided by RSVP officials. However, given the seriousness of the offenses for which he was convicted, the Board finds that these factors are not sufficiently meritorious or mitigating to warrant clemency in this case.

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

__TAP__ __RWA _ __ JAK__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2003083665
SUFFIX
RECON
DATE BOARDED	2003/03/13
TYPE OF DISCHARGE	DD
DATE OF DISCHARGE	1989/06/02
DISCHARGE AUTHORITY	AR 635-200 C3
DISCHARGE REASON	GCM
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.