2.  In effect, the applicant requests to be retired in the pay grade of E-6, that he receive retroactive retirement pay, and that his DD Form 214 (Certificate of Release or Discharge from Active Duty), be corrected to reflect his date of rank as 27 May 1992 instead of 2 May 1992.   

3.  The applicant’s counsel contends that the applicant was reduced in rank as a result of a sentence by a special court-martial on 2 May 1992, however, the sentence was not approved until 27 May 1992; therefore, the applicant’s date of rank on his DD Form 214 should be 27 May 1992.  Counsel states that the applicant’s military record was outstanding and that he served with distinction as a special forces soldier.  Counsel requests that the Board carefully read and consider the numerous references portraying the quality and character of the applicant’s service (The applicant has submitted over 30 letters from officers, NCOs, and civilians attesting to his excellent character, trustworthiness, dedication to duty, professionalism, and other quality traits).  Counsel requests, in addition, that the applicant’s excellent post service be considered.  Counsel notes that the applicant took full responsibility for his actions by pleading guilty to the charges.  Counsel contends that the military judge was not impartial, in that that official held members of special forces in contempt, and he (the military judge) was a rather overweight and disheveled soldier.  

4.  The applicant was a career soldier who had over 20 years of service at the time of his retirement in 1992.  He received multiple awards of the Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal, NCO Professional Development Ribbon, and Overseas Service Ribbon.  The applicant was a parachutist; he completed the special forces qualification course and the special forces operations and intelligence course, among others; and was a graduate of the Sergeant Major Academy.  He received numerous letters and certificates of commendation and appreciation during his career.  The applicant’s evaluation reports have consistently been outstanding and he attained the rank of Master Sergeant E-8 during his military career.


5.  On 2 May 1992 the applicant was arraigned and tried by a special court-martial which convened at Fort Devens, Massachusetts.  He pled guilty to seven specifications of violating a lawful general regulation, i.e., wrongfully possessing a silencer/suppression device; wrongfully possessing an unregistered weapon; wrongfully possessing and shipping two switchblade knifes, one butterfly knife, and two brass knuckles; and wrongfully possessing military ammunition.  He pled guilty to wrongfully possessing a blank military identification card, wrongfully concealing a stolen pistol, and wrongfully concealing stolen military ammunition.  The applicant was sentenced to be reduced to the grade of private E-1.  In accordance with the provisions of the pretrial agreement only so much of the sentence as provided for reduction to E-4 was approved and ordered executed.  The sentence was ordered executed on 27 May 1992.  
6.  The applicant’s defense counsel conducted a voir dire of the military judge, in which the defense counsel implied that the military judge was prejudiced against special forces soldiers, by his [the military judge] use of the word “elitist” in the direct examination of a witness.  The military judge refuted that allegation.

7.  The maximum punishment authorized by the Manual for Courts-Martial adjudged by a special court-martial for violation of a lawful general regulation and concealing stolen property is a bad conduct discharge, 6 months confinement, and forfeiture of pay for six months.

8.  Article 57(c) of the MCM, states in effect, that all other sentences of court-martial [other than forfeiture of pay and allowances and confinement] are effective on the date ordered executed.


9.  In the processing of this case an advisory opinion was obtained from the legal advisor to the Army Review Board Agency (COPY ATTACHED).  That official stated that the effective date of the applicant’s reduction should be 27 May 1992, in accordance with the MCM.  She stated that neither the applicant or counsel have shown that the military judge was not impartial.

CONCLUSIONS:

1.  The applicant’s reduction to pay grade E-4 was effective on 27 May 1992.  The effective date of his pay grade on his DD Form 214 should be changed accordingly.  The applicant should receive all due pay and allowances as a result of this change.

2.  The Board takes note of the applicant’s excellent and outstanding service during his military career, and acknowledges the applicant’s educational endeavors after his separation.  Impressive, also, is the many letters of support the applicant submitted with his request. He did, indeed, invoke trust and confidence.  He was a model of what an NCO should be.  Nonetheless, the applicant, by his actions, betrayed this trust.  The applicant was a senior NCO, no “babe in the woods”.  He knew what he was doing and he knew that what he was doing was wrong.  In view of the applicant’s misdeeds, the sentence of the court was more than fair.  The applicant could have been confined and could have received a bad conduct discharge, with forfeiture of  pay for six months.

3.  Neither the applicant nor his counsel has submitted  probative evidence or a convincing argument in support of his request that he be retired in pay grade E-6 and be granted retroactive pay.   

4.  In view of the foregoing findings and conclusion, it would be appropriate to correct the applicant’s records as recommended below.


RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was reduced to pay grade E-4 effective 
27 May 1992, that his DD Form 214 be changed accordingly, and that he receive all due pay and allowances as a result of this change. 

2.  That so much of the application as in excess of the foregoing be denied.                

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON