MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 March 2002
         DOCKET NUMBER: AR2002067003

         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. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Lester Echols		Member
Mr. Thomas Lanyi		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)

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APPLICANT REQUESTS: In effect, that the documents related to his General Court-Martial (GCM) conviction be removed from his Official Military Personnel File (OMPF), to include the notification and decision by the United States Army Legal Services Agency (USALSA), which approved the findings and sentence of the GCM.

APPLICANT STATES: In effect, that the most serious charges against him were either dismissed prior to trial or resulted in not guilty findings at trial. He further claims that his GCM conviction was unjust because it was based on undue command influence and inappropriate statements made by senior military and civilian officials. He states that his GCM conviction was not eligible for review by a higher court based on the minor nature of the offenses for which he was convicted and the resultant minor punishment imposed by his sentence. In addition, the trial military judge refused to grant a stay in order to allow the
Court of Appeals for the Armed Forces (CAAF) to review his interlocutory appeal prior to trial.

He contends that he never lost his confidence in the military and remained positive that he would be found not guilty of having any kind of sexual relations with any soldiers at Aberdeen Proving Ground (APG), Maryland. He contends that the military justice system can be flawed when the highest level of political and military leadership intervene by making negative statements and this Board is the only forum to correct such an injustice.

The applicant states that he is proud to be a soldier and since his conviction, he has been promoted twice, decorated, and has been recognized for his outstanding duty performance. He states that he fully cooperated at the request of Army investigators to determine whether the cases at APG were racially motivated, and while he believes that the cases were not racially motivated, he does believe that they were inappropriately pursued because of the intense scrutiny that the Army found itself under from the press and Members of Congress (MOC).

Finally, he states that he will always be proud to be a soldier regardless of the Board’s decision, and only the removal of his unjust GCM conviction will close an unfortunate chapter in his family’s life. In support of his application, he submits letters of support, his GCM Orders, and a letter, dated 7 April 1999, signed by the Chief, Examination and New Trials Division, United States Army Legal Services Agency.

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COUNSEL CONTENDS: In effect, that, the applicant’s sentence for his GCM conviction could be considered a defense victory, but in reality it was a great injustice. He contends that the commentary of senior civilian and military leadership of the Army and the Department of Defense, the use of threat and intimidation by MOC directed at the Army’s senior leadership, and the refusal of the trial judge to allow a delay to allow the United States Court of Appeals to hear an interlocutory appeal concerning matters related to unlawful command influence deprived the applicant of a fair trial.

Specifically, counsel contends that inappropriate comments by the Secretary of Defense, Secretary of the Army, and Army Chief of Staff, published in the Army Times and the USA Today; in addition, to the interview of the Commanding General of the Ordnance School at APG, that was broadcast on national television, were all prejudicial to the applicant’s case and laid the foundation for his GCM conviction. He further contends that MOC met with the civilian leadership of the Army, behind closed doors, to discuss their concerns in an attempt to influence and unlawfully direct the outcome of each case.

Counsel further contends that the unfair denial of the trial judge to allow a delay that would allow the United States Court of Appeals to hear an interlocutory appeal concerning matters related to unlawful command influence, and the applicant’s sentence unfairly eliminated the possibility of an appeal to the Army Court of Criminal Appeals.

Finally, counsel contends that the unlawful command influence that permeated this case and brought an injustice to the applicant warrants removal of all documents pertaining to the applicant’s GCM conviction from his OMPF, and any other appropriate relief that the Board may direct.

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

He is presently serving on active duty in the rank and pay grade of
staff sergeant/ E-6 (SSG/E-6), and he is currently assigned to and serving at
Fort Benning, Georgia.

On 18 August 1997, the applicant was charged with a total of 17 specifications of violating Articles 81, 92, 93, 128, and 134, of the Uniform Code of Military Justice (UCMJ). Ultimately, he was found guilty of one specification of violating Article 92, by violating a lawful general regulation by engaging in inappropriate behavior with a private first class (PFC); and two specifications of violating Article 128, by obstructing justice in endeavoring to influence the testimony of two PFC’s. The resultant sentence included a reduction to the rank and pay grade of
specialist/E-4 (SPC/E-4) and a reprimand.

On 7 April 1999, the applicant was notified in a letter from the United States Army Legal Services Agency, that pursuant to Article 69(a) of the UCMJ, they completed the appellate examination of the applicant’s GCM as reflected in GCM Orders Number 3, dated 27 March 1998, issued by Headquarters, U.S. Army Test and Evaluation Command, APG, Maryland. This review resulted in a determination that the record of trial in the applicant’s case contained sufficient legal and competent evidence to support the approved findings of guilty and the sentence beyond a reasonable doubt. Therefore, in accordance with Article 76 of the UCMJ, the findings and sentence in the applicant’s case were determined to be final and conclusive.

Army Regulation 640-10, in effect at the time, set forth the basic authority for the filing of unfavorable information in the OMPF. Table 4-1 of that regulation provided, in pertinent part, that court-martial orders that have at least one finding of guilty or at least one specification of guilty would be filed in the local Military Personnel Records Jacket (MPRJ) and copies of all court-martial orders would be filed permanently in the OMPF, regardless of the findings.

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 contentions of the applicant and his counsel that his trial was unduly influenced by MOC and the senior Army leadership; however, it finds insufficient evidence to support these claims.

2. The evidence for record confirms that the applicant was found guilty of violating Articles 92 and 128 of the UCMJ by a properly constituted GCM and that the findings and sentence of his GCM were found legally sufficient by the appropriate appellate review process.

3. Further, the documents related to the applicant’s GCM conviction were appropriately filed in his OMPF in accordance with the applicable regulation in effect at the time. Therefore, the Board finds an insufficient evidentiary basis for removing the documents in question from the OMPF at this time.

4. 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.

5. 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

__FNE__ ___LE___ ___TL___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067003
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020328
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.