MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 September 2002
         DOCKET NUMBER: AR2002069535

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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, clemency in the form of remission of the two-year suspended portion of her sentence extending to a reduction below the rank of sergeant first class/E-7 and restore her rank to master sergeant/E-8.

APPLICANT STATES: That she served 17 years without a flaw on her record and that she made one mistake and will pay for it over and over again. She believes the punishment was too harsh and unfair. She states that she pleaded guilty because she wanted to take responsibility for her actions and that a guilty plea is considered the highest form of rehabilitation. In support of her application, Special Court-Martial Order 1, dated 22 January 2002; General Court-Martial Order Number 14, dated 17 September 2001; a Request for Clarification of Convening Authority Action dated 17 September 2001, dated
21 September 2001; a “Corrected Copy” of the Convening Authority’s action, dated 28 September 2001; a request for clemency, dated 26 February 2002; and eleven letters in support of the applicant’s claim for clemency.

COUNSEL CONTENDS: The applicant submits a petition from her civilian defense counsel, dated 21 February 2002. In summary, counsel argues that a maximum suspension of a reduction (two years) should be reserved for egregious cases or it would be unfair to any soldier. He contends that to impose a two-year suspension in every case would be an abuse of discretion and that in the applicant’s case a two-year suspension is both unreasonable and inappropriate. He states that her reduction affects not only rank, but also income (immediate and at retirement) and duty position.

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

The applicant enlisted in the Regular Army on 2 September 1983 and has remained on active duty through continuous reenlistments. She was promoted to master sergeant/E-8 on 1 January 2000.

On 10 May 2001, in accordance with her plea of guilty, the applicant was convicted by a general court-martial of making a false official statement to a military policeman in Germany. She was sentenced by a court-martial panel to be reduced to the grade of staff sergeant/E-6 and restriction for 60 days. On
17 September 2001, the convening authority approved the sentence but that part of the sentence extending to a reduction below the rank of sergeant first class/
E-7 class was suspended for 2 years, as a matter of clemency.

The General Court-Martial Convening Authority referred Charge II (Article 134, While driving a vehicle at the time of an accident in which the said vehicle was involved, and having knowledge of said accident, did, at or near Heidelberg, Germany, on or about 27 October 2000, wrongfully and unlawfully leave the scene of the accident without providing assistance to two individuals, who had been struck and injured by the said vehicle) and Specification 1 to a special court-martial empowered to adjudge a bad conduct discharge. All other charges and specifications were promulgated in General Court-Martial Convening Order Number 14, dated 17 September 2001. On 10 August 2001, the General Court-Martial Convening Authority withdrew the Charge and its Specification and the Special Court-Martial proceedings were terminated.

Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

Army Regulation 27-10 (Military Justice) implements, in part, the Department of Defense Reorganization Act, changes to the Manual for Courts-Martial, 1984, and includes changes on matters of policy and procedure pertaining to the administration of military justice within the Army. Paragraph 5-31 of this regulation states, in pertinent part, that a reasonable period of suspension shall be calculated from the date of the order announcing the suspension and shall not extend beyond two years or the period of any unexecuted portion of confinement (that portion of approved confinement unserved as of the date of action), whichever is longer, for a general court-martial.

The Table of Maximum Punishments in the Manual for Courts-Martial shows the total maximum authorized punishment for Article 107 (making a false official statement) is a dishonorable discharge, forfeiture of all pay and allowances and confinement at hard labor for one year.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and it is concluded:

1. The applicant was convicted by a general court-martial of making a false official statement to a military policeman. She was sentenced to be reduced to the grade of staff sergeant/E-6 and restriction for 60 days. The convening authority approved the sentence but the execution of that part of the sentence extending to a reduction below the rank of sergeant first class/E-7 was suspended for two years.

2. Army Regulation 27-10 (Military Justice) states, in pertinent part, that a reasonable period of suspension shall not extend beyond two years for a general court-martial.

3. The Board considered the applicant’s contention that her punishment was too harsh and unfair. However, evidence of record shows the maximum authorized punishment that the applicant could have received at her court-martial for making a false official statement was a dishonorable discharge, forfeiture of all pay and allowances and confinement at hard labor for one year.

4. The Board also considered the applicant’s contention that she served
17 years without a flaw on her record and that she made one mistake and will pay for it over and over again. However, the Board concludes that the applicant was a senior noncommissioned officer with lengthy experience and knew, or should have known, the seriousness of making a false official statement to a military policeman.

5. The applicant has failed to show through evidence submitted with her application or the evidence of record that the actions taken in her case were in error or unjust. Therefore, the Board determined that clemency is not warranted in this case.

6. 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.

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

CLA___ MHM_____ JTM_____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069535
SUFFIX
RECON
DATE BOARDED	20020905
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	102.0200
2.
3.
4.
5.
6.