MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 September 2002
         DOCKET NUMBER: AR2002074480

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Karen Y. Fletcher		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: In effect, that his general discharge be upgraded to honorable, that his court-martial conviction be set aside or that he receive a re-trial.

APPLICANT STATES: In effect, that an error was made at his trial by court-martial because the punishment he received was unjust. He goes on to state that he was placed in jail for saving another soldier’s life one night at Fort Sill, Oklahoma. He also states that he wants three individuals to be present at his re-trial and indicates that he has asked several times to be re-tried.

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

He enlisted in New Orleans, Louisiana, on 26 January 1977, for a period of 3 years, training as a field artillery surveyor and assignment to Fort Sill, Oklahoma. He was transferred to Fort Sill to undergo one-station unit training.

On 28 April 1977, while attending his advanced individual training (AIT), charges were preferred against the applicant and another soldier which consisted of two charges of using force and putting in fear, for the purpose of stealing money from two fellow soldiers (robbery and attempted robbery).

An Article 32b investigation was conducted in May 1977 in which the investigating officer determined that the applicant was identified by both victims and the charge of quarters noncommissioned officer (NCO) as being at the scene of the robbery and that he placed the victims in fear and attempted to steal money from them. The investigating officer recommended that he be tried by a special court-martial authorized to impose a bad conduct discharge (BCD). The convening authority did not agree with the recommendation of the investigating officer and directed that the applicant be tried by a general court-martial.

On 22 June 1977, the applicant tendered an offer to plead guilty to the charges against him in return for the convening authority agreeing not to approve a sentence in excess of a BCD, confinement at hard labor for 1 year and forfeiture of all pay and allowances. The convening authority accepted his plea bargain agreement on 27 June 1977. The maximum sentence the applicant could have received under the Manual for Courts-Martial was a dishonorable discharge, confinement at hard labor for 20 years and total forfeitures.

The applicant was convicted by a general court-martial (judge alone) on 27 June 1977, of two charges of using force and putting in fear, two soldiers, while attempting to steal currency (Robbery and Attempted Robbery). He was sentenced to be discharged with a BCD, confinement at hard labor for 1 year and forfeiture of all pay and allowances.

On 13 July 1977, the applicant’s counsel filed a petition for clemency on behalf of the applicant to the convening authority, contending that the applicant’s sentence was not appropriate and requested that it be reduced. He indicated in his petition that the applicant cooperated fully and had testified for the government against his accomplice at a trial by court-martial and his testimony was critical in the identification and successful prosecution of the other individual. He was found guilty in a military court and the court sentenced him to 3 months confinement and a forfeiture of pay for 3 months. His counsel also indicated that the other member was the aggressor in the robbery and attempted robbery and that the applicant just stood by and held the wallet, yet his sentence was much greater. He further indicated that the applicant testified in an effort to make amends for what he had done and desired to be restored to duty.

The convening authority approved only so much of the sentence as pertained to a BCD, confinement at hard labor for 6 months and forfeiture of all pay and allowances.

The applicant was transferred to the Disciplinary Barracks at Fort Leavenworth, Kansas, on 1 August 1977, to serve his confinement. He was transferred to Fort Knox, Kentucky, on 25 November 1977 and on 29 November 1977, the Army Clemency and Parole Board denied his request for restoration and clemency, but directed that he be furnished a general discharge instead of the BCD indicated in the court-martial sentence.

The applicant’s counsel appealed his sentence to the United States Army Court of Military Review (CMR) contending that the judge erred by not explaining the concept of aider and abettor and not making an adequate inquiry into each element of the pre-trial agreement. On 8 February 1978, the CMR set aside the findings and sentence and directed that a rehearing could be ordered by the same or different convening authority. The government requested reconsideration and also requested that the CMR hold its decision in abeyance until such time as the Court of Military Appeals (CMA) rendered a decision on another case. The motion was granted by the CMR on 6 September 1978.

Meanwhile, the applicant was restored to duty at Fort Knox, pending the appellate review of his case. On 30 May 1978, nonjudicial punishment was imposed against him for leaving his place of duty without authority. His punishment consisted of a forfeiture of pay and extra duty.

On 30 March 1979, the CMR withdrew its 8 February 1978 decision and affirmed the finding and sentence of the general court-martial convening authority.

His counsel petitioned the CMA for a review and the CMA dismissed his petition on 21 September 1979.

Accordingly, he was discharged under honorable conditions on 6 December 1979, pursuant to a duly reviewed and affirmed court-martial conviction. He had served 2 years, 5 months and 7 days of total active service and had 157 days of lost time due to confinement.

Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.

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. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3. The applicant’s contentions have been noted by the Board. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense and his overall undistinguished record of service.

4. Notwithstanding that the Board does not have the authority to overturn a court-martial conviction or to direct another trial, the applicant plead guilty to the offenses for which he was charged and in an attempt to avoid a harsh sentence, he voluntarily entered into a plea agreement with the convening authority. While he may now think he made the wrong decision in that regard, he should not be allowed to change his mind at this late date.

5. Although his accomplice ended up with a less harsh sentence than he did, the applicant was granted an upgrade of his discharge from a BCD to a general discharge by the Army Clemency and Parole Board and he has not provided any evidence or argument to warrant a fully honorable discharge.

6. 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

__rjw____ __kf ____ __rvo ___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2002074480
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/26
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1979/12/06
DISCHARGE AUTHORITY	Gcm
DISCHARGE REASON	Gcm
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 685	144.6800/a68.00
2.
3.
4.
5.
6.