IN THE CASE OF: BOARD DATE: 18 June 2009 DOCKET NUMBER: AR20090001500 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of the Board’s denial of his request to have his discharge upgraded. 2. The applicant states that a supporting letter from a retired lieutenant general (LTG) was not included in his original packet. 3. The applicant provides a letter of recommendation, dated 8 January 2009, and the LTG's "philosophy" in support of his application. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080014349, on 25 November 2008. 2. In a supporting statement, a retired LTG said that he was the commanding general of the 2d Infantry Division as well as the convening authority at the applicant's General Court-Martial proceedings. He offered that during the trial it was a stipulation of expected testimony provided on his behalf relating to the applicant's duty performance. He said that during the court-martial, it was noted that he handpicked the applicant for the position of Senior Food Operations Sergeant for the Commanding General's Mess. 3. The retired LTG said that the applicant was discharged from the service with a felony conviction on his records and he may be required to register as a sex offender. He opined that the final verdict was too severe for what he considered an error in judgment. He added that the decision of the court-martial panel to send a message that the military does not condone any actions of the nature in which the applicant was accused and convicted was well within their authority; however, he maintained that in the applicant's case and based on his service record, he felt that the punishment was somewhat excessive. 4. The applicant also provided the retired LTG's "philosophy" on how working was a blessing. 5. Army Regulation 27-10 (Military Justice) states, in pertinent part, that the convening authority will personally determine whether to refer the charges for trial and the kind of court to which the charges will be referred. This function may not be delegated. The endorsement or other directive referring the charges to a court-martial for trial will be signed by the convening authority or will be authenticated with the convening authority's command line. 6. Additionally, the regulation states that the convening authority will review the record of proceedings of a court and consider the findings, opinions, and recommendations. The convening authority will state at the end of the record, over the convening authority's own signature, approval or disapproval in whole or in part, of the findings, opinions, and recommendations. In taking this action, the convening authority is not bound by the findings, opinions, or recommendations of the court. DISCUSSION AND CONCLUSIONS: 1. The retired LTG offered that he was the convening authority during the applicant's General Court-Martial proceedings. He added that based upon the applicant's service record, he felt that his punishment was too severe and somewhat excessive for an error in judgment. 2. As the convening authority for the applicant's court-martial proceedings, the retired LTG was responsible for referring the charges for trial and deciding what kind of court-martial to which the charges should be referred. If the retired LTG considered the applicant's "actions" an error in judgment, he should have considered a less serious level of a court-martial. Further, if the retired LTG determined that the punishment imposed by the General Court-Martial panel was too severe, he was not bound to accept their findings, opinions, or recommendations. He was free to disapprove the court's finding of guilt on the sentence to a Bad Conduct Discharge. 3. Nevertheless, the supporting statement provided by the retired LTG, prepared over 6 years after the applicant's trial and considering the general's responsibility as the court-martial convening authority at the time, does not provide any evidence sufficiently compelling to overcome his prior decision made closer in time to the applicant's trial, to approve the applicant's sentence as being legally and factually appropriate. Likewise, the paper on the general's "philosophy" on how working was a blessing is not sufficient evidence and not relevant to the applicant's request for reconsideration. 4. The overall merits of the case, including the supporting statement, are insufficient as a basis for the Board to reverse its previous decision. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X_____ __X______ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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 to amend the decision of the ABCMR set forth in Docket Number AR20080014349, dated 25 November 2008. _______ _ X______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20090001500 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090001500 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1