RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 May 2007
      DOCKET NUMBER:  AR20060015118


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Mr. Edward E. Montgomery          |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:
1.  The applicant requests through his legal counsel that his general court-
martial conviction be deleted from his military records.

2.  The applicant states no contentions.

3.  The applicant provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the general court-martial conviction
be deleted from the applicant’s military records.

2.  Counsel states that, in effect, that the applicant was convicted and
sentenced to one year confinement based solely on an allegation made by
another Soldier that the applicant had unwanted sexual intercourse with
her.  Several other witnesses testified that they did no believe that a
rape occurred and that if there was sexual conduct, it was consensual.
Counsel states that he believes that there was some doubt in that the
military panel convicted the applicant but failed to give him a bad conduct
discharge (BCD) or a Dishonorable Discharge (DD).  He was sentenced to
serve only one year in confinement at Fort Riley, Kansas.  One goal of the
court-martial conviction is to allow for rehabilitation.  The applicant has
been fully rehabilitated.  Therefore, based on the applicant’s overall
service record, as well as the questionable evidence presented during the
court-martial process, the applicant requests that his record be cleared.
Counsel also states that the applicant believes that after a careful review
of his courts-martial conviction, as well as other military documents in
his record justice will be served by deleting any references to the court-
martial conviction from his records.

3.  Counsel provides a copy of his DD Form 214 in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 26 December 1990, the date of his discharge from active
duty.  The application submitted in this case is dated 27 October 2006.





2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 5 December 1985, for a
period of three years.  He completed the required training and was awarded
military occupational specialty 62E (Heavy Construction Equipment
Operator).  The highest rank he attained while serving on active duty was
Specialist (SPC) pay grade E-4.

4.  The applicant's record shows no acts of valor, significant achievement
or service warranting special recognition.

5.  On 15 March 1990, the applicant was convicted by a general court-
martial of attempted rape on or about 2 November 1989.  The resultant
sentence was a reduction to pay grade E-1 and confinement for one year.

6.  General Court Martial Order Number 15, Headquarters, 4th Infantry
Division, Fort Carson Colorado, dated 18 April 1990, approved and ordered
the sentence to be executed.

7.  On 28 November 1990, the applicant’s unit commander advised the
applicant that he was recommending him for discharge under the provisions
of paragraph 14-12c of Army Regulation 635-200, for misconduct – commission
of a serious offense.

8.  On 29 November 1990, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, its effects
and of the rights available to him.  The applicant indicated that he would
not be submitting a statement on his behalf.

9.  On 26 December 1990, the applicant was discharged under the provisions
of paragraph 14-12c, Army Regulation 635-200, for misconduct-commission of
a serious offense with an Under Honorable Conditions Discharge Certificate.
 The DD Form 214 issued to him at the time, confirms the applicant
completed a total of 4 years, 3 months and 7 days of creditable active
military service.
10.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, United States
Code, section 1552(f), the authority under which this Board acts, the Army
Board for Correction of Military Records is not empowered to set aside a
conviction nor is the Board authorized to take action with respect to court-
martial and related administrated records pertaining to court-martial
cases, except as described below.  Rather it is only empowered to change
the severity of the sentence imposed in the court-martial process and then
only if clemency is determined to be appropriate.  Clemency is an act of
mercy, or instance of leniency, to moderate the severity of the punishment
imposed.  The Board also has the limited authority to correct records to
accurately reflect appellate actions.

11.  Army Regulation 635-200 (Personnel Separations), currently in effect
sets forth the basic authority for the separation of enlisted personnel.
Paragraph 14 of this regulation establishes policy and prescribes
procedures for separating members for misconduct.  Specific categories
include minor disciplinary infractions, a pattern of misconduct, commission
of serious offense, conviction by civil authorities, desertion, or absences
without leave.  Action will be taken to
separate a member for misconduct when it is clearly established that
rehabilitation is impracticable or is unlikely to succeed.  A discharge
under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200 provides that an honorable discharge is a
separation with honor and entitles the recipient to benefits provided by
law.  The honorable characterization is appropriate when the quality of the
member’s service generally has met the standards of acceptable conduct and
performance of duty for Army personnel (emphasis added), or is otherwise so
meritorious that any other characterization would be clearly inappropriate.
 Whenever there is doubt, it is to be resolved in favor of the individual.

13.  Army Regulation 635-200 provides that a general discharge is a
separation from the Army under honorable conditions.  When authorized, it
is issued to a Soldier whose military record is satisfactory but not
sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.
DICUSSION AND CONCLUSIONS:

1.  The applicant contends that his general court-martial conviction should
be expunged from his military records.

2.  The evidence of record shows the applicant was convicted by a general
court-martial.  Trial by general court-martial was warranted by the serious
nature of the offense for which he was charged.  The sentence is
commensurate with the misconduct of which the applicant was convicted.  The
applicant has established no basis for granting clemency.

3.  The evidence of record confirms that all requirements of law and
regulation were met and the applicant’s rights were fully protected
throughout the separation process.  The record further shows the
applicant’s discharge accurately reflects his overall record of service.

4.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

5.  Records show that applicant should have discovered the alleged error or
injustice now under consideration on 26 December 1990; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
25 December 1993.  The applicant did not file within the 3-year statue of
limitations and has not provided compelling explanation or evidence to show
that it would be in the interest of justice to excuse failure to timely
file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____PMS   ___DKH _  __EEM__  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                          __Paul M. Smith______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015118                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/05/01                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR. SCHWARTZ                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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