MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 March 2003
	DOCKET NUMBER:   AR2002078347

	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)

APPLICANT REQUESTS:  In effect, that the errors in his general court-martial (GCM) record of trial be corrected and that his sentence be changed accordingly. 

APPLICANT STATES:  In effect, that he is applying for correction to all his records showing a valid legal court-martial conviction.  He states that he believes that this Board has the authority to correct the errors in his trial record pursuant to the clemency authority it is granted on behalf of the Secretary of the Army in Title 10 of the Untied States Code, section 1552 (10 USC 1552).  The applicant further states that he is also addressing these issues through the appellate process to the Army Court of Review.  In support of his application, he provides the enclosed self-authored petition for relief outlining the history of his case, the relief he seeks, and the reasons he believes relief should be granted.  

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

On 26 March 1991, the applicant entered active duty in the Regular Army for 
3 years.  He completed One Station Unit Training (OSUT) at Fort Benning, Georgia, and he was awarded military occupational specialty (MOS) 11B (Infantryman).

On 29 October 1993, while serving at Fort Campbell, Kentucky, the applicant reenlisted for 3 additional years.  His Personnel Qualification Record (DA Form 2-1) shows that the highest rank he attained while serving on active duty was specialist/E-4 (SPC/E-4), and it documents no acts of valor, significant achievement, or service warranting special recognition.  

On 5 December 1995, the applicant was convicted of the following offenses that occurred on or about 23 July 1995 by a GCM:  forcible oral sodomy; forcible anal sodomy; assault consummated by battery; breaking and entering, with intent to commit the offense of larceny; and wrongfully communicating a threat.  The resultant sentence included a reduction to private/E-1, forfeiture of all pay and allowances, confinement for 50 years, and a dishonorable discharge.  

The GCM was promulgated in GCM Order Number 4, dated 16 February 1996, issued by Headquarters, 2nd Infantry Division, Korea.  This order shows that the GCM convening authority approved only so much of the sentence that provided for reduction to private/E-1, forfeiture of all pay and allowances, confinement for 
28 years, and a dishonorable discharge; and that he directed that the sentence be executed except for that part extending to a dishonorable discharge.  

GCM Order Number 50, dated 3 June 1998, issued by the United States Disciplinary Barracks, U.S. Combined Arms Center and Fort Leavenworth, 
Fort Leavenworth, Kansas, verified that the applicant’s sentence had been finally affirmed and ordered that, Article 71(c) having been complied with, the dishonorable discharge be executed.  On 26 June 1998, the applicant was discharged accordingly.  

The separation document (DD Form 214) issued to the applicant upon his discharge confirms that he completed a total of 4 years, 3 months, and 27 days of creditable active military service, and that he accrued 1064 days of time lost. It also confirms that he received a dishonorable discharge under the provisions of chapter 3, Army Regulation 635-200, as a result of court-martial.  

Chapter 47 of Title 10 of the United States Code contains the Uniform Code of Military Justice (UCMJ).  Subchapter IX provides guidance on post trial procedure and review of courts-martial, and it contains an index of the sections of the law that outline authorized court-martial review authorities.  

10 USC 876 (Article 71 of the UCMJ) contains the legal guidance on the finality of court-martial proceedings, findings, and sentences.  It states that the appellate review of records of trial provided by this chapter, the proceedings, findings, and sentences of courts-martial as approved, reviewed, or affirmed as required by this chapter, and all dismissals and discharges carried into execution under sentences by courts-martial following approval, review, or affirmation as required by this chapter, are final and conclusive.  Orders publishing the proceedings of 
courts-martial and all action taken pursuant to those proceedings are binding upon all departments, courts, agencies, and officers of the United States, subject only to action upon a petition for a new trial as provided in section 873 of this title (Article 73) and to action by the Secretary concerned as provided in section 874 of this title (Article 74) and the authority of the President.

10 USC 1552, section 1552, provides the legal authority for the correction of military record and governs the operation of this Board acting on behalf of the Secretary of the Army.  It states, in effect, that the Board may not disturb the finality of a court-martial, and that its correction authority is limited to the implementation of actions directed by the reviewing authorities identified in chapter 47 (UCMJ) of this title; or to action on the sentence of a court-martial for purposes of granting clemency. 

In addition, as a matter of comity, the jurisdiction of this Board to review a conviction for clemency purposes does not commence until the jurisdiction of the Army Clemency and Parole Board expires.  Both Boards act directly for the Secretary of the Army on matters of clemency.  Unlike other boards, this Board’s authority in clemency is not a form of appellate review of the clemency authority of the Army Clemency and Parole Board.  The Army Clemency and Parole Board has continuing jurisdiction for clemency matters from the time of the convening authority’s action until the inmate’s completion of sentence.  Upon completion of the inmate’s sentence, jurisdiction for clemency is transferred to this Board.  

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 notes the applicant’s contention that this Board has the legal authority to correct errors in his court-martial trial record that are found during its clemency review.  However, although the Board has been delegated the authority to correct military records on behalf of the Secretary of the Army in accordance with 10 USC 1552, this law does not empower it to disturb the finality of a court-martial sentence.  The law only allows the Board to implement records corrections directed by a legally defined court-martial review authority, or to grant clemency.  

2.  The evidence of record confirms that the applicant’s trial by court-martial was warranted by the gravity of the offenses with which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the applicant’s self-authored petition provides no independent evidence to the contrary.  Absent a directive that requires a records correction from a properly designated court-martial review authority, the Board finds no basis to grant the requested relief.  

3.  Clemency is an act of mercy, or instance of leniency, that may be used to moderate the severity of the punishment imposed.  In this case, the Army Clemency and Parole Board has continuing jurisdiction for clemency matters until the applicant completes his sentence.  Until the applicant completes his sentence, his other administrative remedies have not been exhausted.  When he completes his sentence, clemency jurisdiction will formally transfer to this Board. Therefore, the Board concludes that it would be premature to exercise its clemency jurisdiction in this case at this time.  

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

INDEX

CASE ID	AR2002078347	
SUFFIX		
RECON		
DATE BOARDED	2003/03/13	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	1998/06/26	
DISCHARGE AUTHORITY	AR 635-200 C3	
DISCHARGE REASON	Court-Martial 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  30	105.0000	
2.  281	126.0400	
3.		
4.		
5.		
6.