MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 15 November 2001
         DOCKET NUMBER: AR2001054008

         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
Ms. P. A. Castle		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Stanley Kelley		Member
Ms. Karen A. Heinz		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: Reconsideration of his previous request to correct his military records to show reinstatement in the Army Reserve to effect a promotion to Colonel.

APPLICANT STATES: On 20 January 2001, he received a “full and unconditional pardon” from the President of the United States in the matter for which the Army dropped him from the rolls and removed him from the Colonel’s promotion list.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case (AC92-05767) on 5 August 1992 and reconsideration (AC92-05767A) on 31 March 1993.

The applicant was born on 26 August 1937 in Medford, Massachusetts where he enlisted on 4 September 1956 at the age of eighteen. He completed his training as a light weapons infantryman. He continued to serve until he was released from active duty and transferred to the United States Army Reserve (USAR) on 18 August 1959. The applicant continued to serve in the Reserve forces and had attained the rank of Sergeant First Class (SFC) when on 28 January 1967 he received a direct commission as a second lieutenant. On 14 July 1977 as a Captain in the reserves he was notified that he had completed the required 20 years of service to be eligible for retired pay at age 60.

The applicant trained as a Special Forces officer and continued his military career without incident enabling him to reach the rank of Lieutenant Colonel. Simultaneously with his military career, he pursued and completed his Masters Degree in Criminal Law while working as a police lieutenant on the Patrol force of the metropolitan Boston Police department. He was also a member of the department underwater recovery unit and bomb disposal squad and was awarded the police highest award for bravery, The Medal of Valor.

On 21 June 1988, while serving as a police officer and a lieutenant colonel in the reserves he was indicted on two counts of conspiracy to commit mail fraud (receiving advanced copies of civil service examinations in the mail in violation of Title 18, United States Code, section 371), and two counts of perjury (lying to a Federal Grand Jury) in violation of Title 18, United States Code, section 1623. He was convicted of all four counts and the sentence imposed consisted of confinement for 5 years in a Federal correctional institution and a $200 special assessment.

On 19 December 1988 he was notified that he had been selected for promotion to the rank of colonel, Army Reserves, pending Senate confirmation. His promotion eligibility date was 14 July 1989.

On 22 August 1989 the applicant was informed that his name had been removed from the Colonel’s promotion list and on 30 July 1990 the appropriate authority directed that he be dropped from the rolls of the Army under the provisions of Army Regulation 135-175, paragraph 3-3b, for having been sentenced to confinement in a Federal correctional institution.

In support of his application he submits as evidence an Executive Grant of Clemency, “a full and unconditional pardon” by the President of the United States of America dated 20 January 2001. The document reads “pardoned for his conviction in the United States District Court for the District of Massachusetts on an indictment (Criminal No. 88-175-Mc) charging violation of Sections 371 and 1623, United States Code, for which he was sentenced on October twenty-sixth, 1988, to four years’ imprisonment.” The applicant also submits a copy of orders 142-19, dated 30 July 1980, which dropped him from the rolls of the Army, his promotion selection memorandum dated 19 December 1988, U. S. Army Officer Evaluation Reports dated 1986, 1988, 1989, and a certificate of Reserve retirement dated 26 August 1997.

Black’s Law Dictionary defines a pardon as the act or instance of officially nullifying punishment or other legal consequences of a crime. A pardon is usually granted by the chief executive of a government (the President has the sole power to issue pardons for Federal offenses, while State governors have the power to issue pardons for State crimes). An absolute pardon releases the wrongdoer from punishment and restores the offender’s civil rights without qualification (also termed full pardon, unconditional pardon).

General regulations regarding the submission, consideration and award of pardons are set down in Title 28, United States Code of Federal Regulations. Justice Department regulations require a 5-year waiting period (after conviction or end of incarceration) before a person becomes eligible to apply for a pardon. In general, a pardon is granted on the basis of a petitioner’s demonstrated good conduct for a substantial period of time after conviction and service of sentence. In determining whether a particular petitioner should be recommended for a pardon, the principal factors taken into account include, post-conviction conduct, character and reputation, seriousness and relative recentness of the offense, acceptance of responsibility, remorse, and atonement, need for relief and official recommendations and reports.

Army Regulation 135-175 provides the policies, criteria, and procedures governing the separation of officers. Paragraph 3-3b provides, in pertinent part, that officers may be dropped from the rolls for having been sentenced to confinement in a Federal correctional institution after having been found guilty of an offense by a civil court, provided the sentence has become final, whether or not the officer is actually confined.

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

2. The applicant’s contentions that he was unjustly punished by the Army (dropped from the rolls and removed from the colonel’s promotion list) for a civil offense that had nothing to do with the Army has been noted by the Board and appears to be without merit. The applicant was dropped from the rolls and administratively removed from the promotion list in accordance with the applicable regulations, with no violations of any of the applicant’s rights.

3. While the applicant may believe that his civil conviction had nothing to do with his status as an officer in the Army, the Board believes otherwise. Although he was a police officer who was convicted by civil authorities, he was still an Army officer and his actions reflect and bring discredit on the Army as well. His conduct and the felony conviction he received go to the very core of the matter before this Board. He was convicted of lying under oath and he advanced his career by cheating on civil service examinations. His actions deem him untrustworthy as a soldier and leader and as such, he should not be afforded the privilege of further service in the Armed Forces.

4. While the applicant has received a Presidential Pardon, there is no evidence to suggest that the President intended to disrupt good order and discipline by restoring him to the Army or promoting him. Additionally, there is nothing to suggest that the pardon was intended to remove any guilt for the offenses for which he was convicted or to restore all that was lost as a result of his felony conviction. While many of his civil rights are restored by the Pardon, to promote him to colonel and reinstate him to the Reserve of the Army would be tantamount to the Board sanctioning his conduct. The Board finds no basis to do so.

5. The Board is also of the opinion that a pardon does not wipe out a record of conviction nor does it blot out guilt. The very nature of the pardon process suggests that it is a form of forgiveness that is granted on a case by case basis and does not involve restitution by the government. It simply affords an individual the opportunity to regain some civil rights that were lost and in some cases cuts short any remaining punishments. Accordingly, the Board finds that there is no basis to reinstate him to the Reserve of Army or promote him to the rank of colonel.

6. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decisions.

7. 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

__inw ___ ___sk ___ ___kh___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001054008
SUFFIX
RECON
DATE BOARDED	2001/11/15
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000/
2. 192	110.0300/reinstatement
3. 310	131.0000/promotion
4.
5.
6.