RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 November 2005
      DOCKET NUMBER:  AR20050011616


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Ms. Jeanette R. McCants           |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his rank of sergeant first
class/pay grade E-7 be reinstated.

2.  The applicant states that his summary court-martial was prejudged and
improper because he was not given the opportunity to seek legal counsel.

3.  The applicant provides a one-page statement, dated 9 June 2005; a two-
page autobiography; a copy of DA Form 458 (Charge Sheet), dated 18 January
2005; a copy of the 39th Brigade Combat Team, Camp Taji, Iraq memorandum,
dated 26 January 2005; a copy of the 39th Brigade Combat Team memorandum,
dated 19 January 2005; four-pages of electronic mail, dated from 11
December 2004 through 28 January 2005; a Memorandum for Record, dated 3
February 2005; a Memorandum for Record, dated 2 February 2005; a Memorandum
for Record, dated 29 January 2005; nine letters of support from fellow
soldiers and friends; and two photographs, dated 22 November 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered the Regular Army on 25 August 1988 for a period
of four years.  After completion of basic and advanced individual training,
he was awarded military occupational specialty 11M10 (Fighting Vehicle
Infantryman).  The applicant continued to serve through a series of
reenlistments.  On 5 January 2001, he reenlisted for an indefinite period
in MOS 11M30 (Fighting Vehicle Infantryman) and is currently serving
overseas in Iraq.

2.  The applicant's service records contain DD Form 458 (Charge Sheet),
dated 18 January 2005, which shows charges were imposed against him for
failure to obey a lawful general order on 10 September 2004 [Combined Joint
Task Force Number 7 General Order Number 1, dated 23 July 2003], by
wrongfully possessing and consuming an alcoholic beverage and for
committing an indecent assault upon a noncommissioned officer, a person not
his wife, on 10 September 2004.  This form also shows that on 18 January
2005, the applicant was informed of the charges against him.

3.  On 19 January 2005, the commanding general of Headquarters, 39th
Brigade Combat Team appointed a summary court officer.



4.  A Headquarters, 39th Brigade Combat Team memorandum, dated 26 January
2005, shows the applicant was notified by the Summary Court Officer of the
hearing and the applicant's opportunity to present witnesses, documentary
or physical evidence for consideration.

5.  The applicant's service records contain a DD Form 2329 (Record of Trial
by Summary Court-Martial), dated 28 January 2005, which shows the trial
proceedings were held on 28 January 2005.  This form also shows the
applicant was not represented by counsel, that he pled guilty, and was
found guilty of all charges.  The resultant sentence consisted of reduction
in rank to staff sergeant/pay grade E-6 and forfeiture of 2/3 of his pay
for one month.

6.  The DD Form 2329 also shows that the applicant was advised of his
rights to submit written matter to the convening authority, including a
request for clemency, and the right to request a review by the Judge
Advocate General.  There is no evidence that the applicant submitted a
request for clemency or for a review by the Judge Advocate General.

7.  On 28 January 2005, the convening authority concurred with the findings
of the summary court-martial.

8.  The applicant submitted a letter, dated 9 June 2005, wherein he states
that he was appointed a trial defense military lawyer who was not able to
represent him because he was on rest and recuperation leave.  He continues
that he was able to obtain a civilian lawyer but due to financial reasons,
the civilian lawyer could not travel to Iraq for the court-martial hearing.
 The applicant continues that he made it clear to the chain of command that
he did not see the Trial Defense lawyer; however, the court-martial
convened.  The applicant believes that his rights were violated by the
chain of command by not affording him the opportunity to be represented by
proper counsel.

9.  The applicant submitted several letters of support from fellow soldiers
and a former commander wherein all essentially state that the applicant's
character, professionalism, and performance of duty are outstanding.  The
letters also state the applicant, without question, has gained the respect
and confidence of his superiors for his depth of knowledge, sound judgment
and initiative.

10.  The applicant submitted two photographs, annotated 22 November 2004,
which shows one Soldier drinking a beer and one Soldier holding a beer
bottle.


11.  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 (ABCMR) 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.

12.  The Manual for Courts-Martial (MCM) provides a discussion in Chapter
XIII regarding Summary Courts-Martial.  Subparagraph e of Rule 1301
indicates that the accused at a summary court-martial does not have the
right to counsel.  If the accused has a civilian counsel provided by the
accused and qualified under Rule of Courts-Martial 502(d)(3), that counsel
shall be permitted to represent the accused at the summary court-martial if
such appearance will not reasonably delay the proceedings and if military
exigencies do not preclude it.

13.  Article 92 of the Uniform Code of Military Justice (UCMJ) is the
article for failure to obey an order or regulation. Specifically, Article
92 states, in pertinent part, that any individual who violates or fails to
obey any lawful general order or regulation shall be punished as a court-
martial may direct.  The maximum punishment under this article is a
dishonorable discharge, forfeitures of all pay and allowances, and
confinement for two years.

14.  Article 134 of the UCMJ is the general article.  Specifically, Article
134 states, in pertinent part, that any individual who commits indecent
assault upon a certain person who is not the spouse of the accused in a
certain manner, that the acts were done with the intent to gratify the lust
or sexual desires of the accused, and that, under the circumstances, the
conduct of the accused was to the prejudice of good order and discipline in
the armed forces or was of a nature to bring discredit upon the armed
forces shall be punished as a court-martial may direct.  The maximum
punishment under this article is a dishonorable discharge, forfeitures of
all pay and allowances, and confinement for five years.

DISCUSSION AND CONCLUSIONS:

1.  By law, any redress by the ABCMR of the finality of a court-martial
conviction is prohibited.  The ABCMR is only empowered to change a
discharge if clemency is determined to be appropriate to moderate the
severity of the sentence imposed.

2.  Records show the applicant was tried and convicted for disobeying a
lawful general order and for committing an indecent assault upon a female
noncommissioned officer, a person not his wife.

3.  The offenses warranted a trial by summary court-martial.

4.  The sentence was adjudged by the summary court officer and approved by
the summary court-martial convening authority.

5.  There is no evidence of record which shows that this summary court-
martial proceeding was flawed, improper or unjust.

6.  The Manual for Courts-Martial shows that individuals who are tried by a
Summary Court-Martial "do not have the right to counsel" [Rule 1301].

7.  The Manual for Courts-Martial, in effect at that time, shows that the
applicant did not receive the maximum punishment for the offenses of which
he was convicted.  Also, the applicant did not provide substantial evidence
that shows he was treated unfairly throughout the summary court-martial
proceeding.

8.  In view of all the foregoing facts, there is insufficient basis to
grant clemency in the form of reinstatement of the applicant's rank to
sergeant first class/pay grade E-7.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JM____  __LE____  _JED____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                     __Lester Echols____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050011616                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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