APPLICANT REQUESTS:  That the findings and sentence of his summary court-martial dated 14 September 1994 be set aside, that he be restored to the pay grade of E-7, and that a relief for cause noncommissioned officer evaluation report covering the period January 1994 through February 1994 be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES:  That he was unjustly denied due process in his trial by a summary court-martial because he was not allowed to call relevant witnesses in his own behalf.  He goes on to state that he was unjustly convicted of offenses for which he was not guilty and for which there were no witnesses.  Furthermore, he was unjustly denied the opportunity to properly prepare his case due to command influence, in that, not only was he instructed not to talk to anyone about the case, the soldiers in his unit were also instructed not to discuss the case with him.  He further states that his conviction was based on the accusations of two subordinate female soldiers who served under him while he was serving as the acting first sergeant in Somalia, who contended that he sexually harassed them.  He also states that he intended to call witnesses who could establish his credibility and discredit the credibility of his accusers and their witnesses, but was denied the opportunity to do.  In support of his application he submits copies of the statements he submitted at his trial by court-martial and excerpts from the investigations that preceded the      court-martial.

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

The applicant enlisted on 12 September 1977 and remained on active duty through continuous reenlistments.  He was promoted to the pay grade of E-7 on 1 August 1989.

On 9 February 1994, while serving as a first sergeant of a transportation company deployed to Somalia, the applicant was the subject of an investigation conducted under the provisions of Army Regulation 15-6 which recommended that the applicant be relieved of his duties as first sergeant, that the commander take appropriate punitive action and that he not be placed in any kind of supervisory or leadership position.

On 9 May 1994 the applicant received a relief for cause NCOER covering the period January 1994 through February 1994, evaluating him as a first sergeant of a transportation company serving in Somalia.  The NCOER indicates that the applicant failed to set the example by making repeated comments with clear sexual overtones, and that he committed indecent sexual assaults on a subordinate female soldier, including kissing her without consent.  The report also indicated that he was relieved for making deliberate and repeated offensive sexual comments to junior female soldiers and that he should not be placed in a leadership position.

There is no indication in the available records to show that the applicant ever appealed the contested NCOER to the Enlisted Standby Review Board (ESRB).

A subsequent investigation was initiated under the provisions of Article 32 of the UCMJ (at his home station of Fort Eustis, Virginia), which was completed on 19 May 1994.  This investigation established probable cause to prefer criminal charges against the applicant.

On 8 July 1994 charges were preferred against the applicant for violation (two specifications) of Article 134, UCMJ, by committing an indecent assault on a subordinate female NCO by putting his tongue in her ear and by putting his hand on her inner thigh with intent to gratify his sexual desires, and for violation (three specifications) of Article 93, UCMJ, by maltreating the same female NCO by telling her to get on the table so he could eat her, and for looking between her legs and saying that he wanted to get between them.  He was also charged with maltreating a subordinate female private by asking her, with sexual implications, to help relieve him of his stress.  The applicant pled not guilty to all charges.

On 14 September 1994 the applicant was convicted by a summary court-martial of one specification of indecent assault upon a subordinate female NCO and one specification of maltreatment of a subordinate female private.  He was sentenced to be reduced to the pay grade of E-6.  The findings and sentence of the summary court-martial were approved on 4 October 1994.

A legal review of the summary court-martial was conducted by the chief of criminal law at Fort Eustis and found to be legally sufficient.

On 23 June 1995 the Judge Advocate General of the Army (TJAG) reviewed the applicant’s application for relief under the provisions of Article 69, UCMJ.  The review included all of the matters presented at the trial and raised post-trial by the applicant.  The TJAG concluded that the applicant failed to establish any basis for relief for his conviction or sentence and denied his application.

A review of the applicant’s records shows that the only derogatory information (other than the aforementioned documents) contained in the applicant’s OMPF is a letter of administrative reprimand dated 1 September 1987 which reprimands the applicant for sexually harassing (physically and verbally) three female trainees under his charge.

The Manual for Courts-Martial states, pertinently, that no person who objects thereto before arraignment may be tried by summary court-martial even if that person also refused punishment under Article 15, UCMJ, and demanded trial by court-martial for the same offenses.  If the accused objects to trial by summary court-martial, the convening authority may dispose of the case in accordance with Rules for Courts-Martial 401.  That rule states that the commander may dispose of the charges or refer the charges for trial by special or general court, as appropriate, where the rights of the accused may be enhanced.

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 applicant in this case, as in any other case, must show to the satisfaction of the Board, or it must otherwise appear that the record is in error or that he was mistreated by the Army.  In this case, the applicant has failed to meet this requirement.

2.  Although the applicant did not provide complete copies of the investigations or a transcript of his trial by summary court-martial, it appears, based on the available evidence that trial by court-martial was warranted by the gravity of the offenses charged.  It also appears that his conviction was effected in accordance with applicable law and regulations, and his sentence was appropriate considering the misconduct for which the applicant was convicted.

3.  Although the Board cannot set aside a court-martial conviction, it has the authority to grant clemency.  However, the facts in this case do not appear to warrant clemency.

4.  The contentions of the applicant have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.

5.  In view of the foregoing, there appears to be 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

                       DENY APPLICATION




		Karl F. Schneider
		Acting Director