RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 FEBRUARY 2007
	DOCKET NUMBER:  AR20060004359 


	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.  




	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 court martial be set aside, rank be restored to E7, and that he be entitled to all back pay and allowances for the loss of his rank and confinement.  Additionally, he requests that a letter be placed in the records of the Noncommissioned Officers and officers that were knowingly dishonest. 

2.  The applicant states that he believes his court-martial and Criminal Investigation Division (CID) investigation was influenced by his chain of command.  He explains that the CID investigator, after investigating him for a year, was not present at his court-martial.  Neither was his company commander nor the prosecutor, after writing sworn statements that placed him in pre-trail confinement, present at his court-martial.  The applicant states that the prosecutor who worked on his court case for over a year was reassigned to Yongsan, Korea, before the trial.

3.  The applicant provides his Record of Trial by Court-Martial, Article 32 Hearing cassettes, orders, involuntary discharge under chapter 14 paperwork, DA Form 4856 (Developmental Counseling Form), memorandums, Congressional Inquiries, and Enlisted Record Brief (ERB). 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show that he enlisted in the Regular Army and entered active duty on 13 June 1986.  He was retired on 30 June 2006 in the grade of E4 with 20 years and 18 days of active federal service. 

2.  Orders dated 12 April 2002 show that the applicant was promoted to E7 effective 1 May 2002.

3.  On 17 October 2002, a trial counsel recommended the applicant be tried by a General Court-Martial.  The trial counsel said the applicant submitted a DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters) to finance, changing his dependent’s location from Killeen, Texas to Ontario, California.  This change resulted in an increase in the applicant’s authorized basic allowance for housing (BAH) from $638.00 to $1504.00 a month.  The applicant submitted this form fraudulently, knowing that his wife, who he was in the process of divorcing, resided in Texas and had no intentions of moving to California.  The trial counsel listed the proposed charges as larceny and making a false official statement.  

4.  On 30 January 2003 charges were preferred against the applicant for the following violations: 

a.  Violation of the Uniform Code of Military Justice (UCMJ) Article 121, Charge I, Specification:  The applicant stole currency while in the Republic of Korea on or about 10 May 2001 and 31 December 2002 in the value of more than $500.00, the property of the United States Government. 

b.  Violation of the UCMJ Article 107, Charge II, Specification 1:  On       10 May 2001, the applicant signed an official document, DA Form 5960 with the intent to deceive.  Specification 2:  On 24 September 2002 the applicant made a false official statement to a special agent concerning the residence of his dependent daughter.  

5.  On 7 February 2003 the applicant signed a memorandum acknowledging that an Article 32 Investigation to investigate the facts and circumstances concerning charges preferred against him would be conducted on 13 February 2003. 

6.  On 3 April 2003, additional charges were preferred against the applicant:

	a.  Additional Charge I, Violation of UCMJ Article 121, Specification:  On or about 11 May 2001 and 23 May 2001, the applicant stole U.S. currency military property of a value in excess of $500.00, the property of the United States Government.

	b.  Additional Charge II Violation of UCMJ Article 132, Specification 1:  On or about 11 May 2001, the applicant made a claim against the United States in the amount of $2,869.91 for travel expenses pursuant to his permanent change of station move to Korea to include expenses for movement of his wife and daughter.  The claim for over $500.00 was false and fraudulent in that neither his wife nor his daughter actually ever accompanied him on the journey.

	c.  Additional Charge III, Violation of UCMJ Article 107, Specification 1:  On 11 May 2001, the applicant signed a DD Form 1351-2, Travel Voucher or Subvoucher, which was false and stated that neither his wife nor his daughter had accompanied him on any part of his permanent change of station move.  Specification 2:  On 7 November 2001, the applicant signed DA Form 5960, indicating that he was married and his dependent resided in California.

d.  Additional Charge IV, Violation of the UCMJ, Article 134, Specification 1:  On or about 7 May 2001 and 30 January 2001, the applicant wrongfully endeavored to influence and alter the testimony of a witness by communicating a threat to end benefits to the witness daughter unless the witness agreed to testify falsely at the applicant’s trial.  Specification 2:  On or about 1 June 2002 and       2 April 2003 the applicant wrongfully endeavored to influence the testimony of a witness by communicating a threat to expose to the public a tape of the witness indiscretions if he testified against the applicant at a trial.  Specification 3:  On or about 1 June 2002 and 2 April 2003 the applicant wrongfully endeavored to influence the testimony of a female witness by communicating a treat to physically harm her and expose to the public a tape in which she was implemented in certain indiscretions if she testified against the applicant or got him in further trouble at a trial.

	d.  Additional Charge V, Violation of UCMJ Article 127, Specification:  On or about 1 June 2002 and 2 April 2003 the applicant, with intent to unlawfully obtain an advantage to benefit his case at court-martial, communicated a threat to expose to the public a tape in which his witness admitted indiscretions with the female witness.

7.  On 3 April 2003, the company commander submitted a memorandum for record justifying the applicant’s pretrial confinement.  The pretrial confinement checklist stated that the applicant engaged in a scheme to steal money from the Army via a false travel claim and false basic allowance for housing claim.  After discovery of his crimes, he engaged in a pattern of obstruction of justice and extortion in order to undermine the process of justice.  The commander concluded that she felt that she (commander) had no other reasonable course of action to satisfy her three part standard of (a) ensuring that orderly military justice proceedings occurs, (b) safeguarding the safety of Soldiers in her command, and (c) preventing further crime from occurring, than by placing the applicant in pretrial confinement.

8.  On 6 and 7 August 2003, a General Court-Martial convened at Headquarters, 2d Infantry Division, Camp Casey, Republic of Korea.  The three volumes of the record of trial show that the applicant was represented by counsel and afforded due process throughout the proceedings.  The applicant was found guilty of larceny, fraud, and two counts of making a false statement.  He was found not guilty of two counts of communicating threats and extortion.  His sentence consisted of reduction to private (E1), $15,000.00 fine, and confinement for two months.  The applicant was credited with 126 days of pre-trail confinement against his sentence of two months confinement.  



9.  General Court-Martial Order Number 27, dated 30 October 2003, shows that of the seven charges listed on the order, he was found guilty of four of the charges, not guilty of two of the charges, and one charge was dismissed.  The order shows that the Judge Advocate General reviewed the case in accordance with Article 69, UCMJ and found that the findings were supported by law and the sentence was appropriate.  Since the applicant did not receive a punitive discharge or confinement of one year or more, the Army Court of Criminal Appeals did not have to review the applicant’s case.  Following the Judge Advocate General’s review the convening authority approved the findings and the sentence as adjudged.

10.  The counseling statement, dated 30 October 2003, shows that the applicant was informed by his commander that he (applicant) was being processed for separation under Army Regulation 635-200, chapter 14-12c, commission of a serious offense.

11.  On 14 November 2003, the applicant acknowledged he consulted with counsel on the basis of his contemplated separation under the provision of chapter 14-12c, Army Regulation 635-200.  The applicant said he understood that he was entitled to an administrative separation board and he requested personal appearance before that board.  Apparently, the board reviewed the applicant’s case and elected to retain him on active duty, as the record reflects no action by a board recommending the applicant’s discharge.

12.  The applicant provided numerous letters written to his Congressman and the Congressman's response to his request for assistance in what the applicant felt was an unjust court-martial.

13.  Orders 087-0106, dated 28 March 2006, show that the applicant was assigned to Fort Hood, Texas, and was released from active duty and placed on the retired list effective 30 June 2006.  The applicant’s retired grade was listed as Specialist.  

14.  The applicant’s ERB dated 1 December 2005 shows his date of rank to E-1 as 21 August 2003.  His date of rank to E2, E3, and E4 was listed as 1 April 2004, 1 February 2005, and 1 August 2005, respectively.  Additionally, his ERB shows his date of last permanent change of station from Camp Casey, Korea, to Fort Hood, Texas, as 23 January 2004.



15.  Army Regulation 27-10 (Military Justice) states, in pertinent part, that in any case of pretrial confinement, the commander of the person confined will provide a written statement to the military magistrate justifying his reason for pretrial confinement.  The military magistrate will consider all relevant facts and circumstances surrounding each case of pretrial confinement in arriving at his/her decision.  All military magistrates are empowered to order the release from pretrial confinement of any confinee in any U.S. Army confinement facility on determination that continued pretrial confinement does not satisfy legal requirements. 

16.  Title 10, United States Code, Section 1552, which is the law governing the correction of military records, precludes the Army Board for Correction of Military Records (ABCMR) from disturbing the finality of a court-martial.  It may not retry elements of, or arguments presented before a court-martial, or an appeal to a court-martial. It may not change the findings of a court-martial, but may consider clemency on the court-martial sentence.  The Board is also precluded from paying “damages” although claims against the Government may be presented through the appropriate Federal court.  Finally, the Board possesses no authority to direct an investigation of Army personnel for allegations of misconduct or direct that Army officials sanction or otherwise note allegations of misconduct in a member’s record.  Judicial or adverse administrative actions and investigations leading there to are a function of the military chain of command of the individuals concerned.  

DISCUSSION AND CONCLUSIONS:

1.  The Board is precluded from changing the findings of the applicant’s general court-martial to show that he was not guilty of any of the charges and/or that the court-martial and all specifications be removed from his record.  The Board can not award damages as the applicant implies.  Finally, the Board may not direct Army officials to take adverse action against a Soldier or file adverse paperwork in another Soldier’s file based on the request of an applicant.

2.  At trial, the applicant did not challenge the legality of his pretrial confinement or allege that he was subjected to illegal pretrial punishment in violation of Article 13, Uniform Code of Military Justice.  As he did not raise the issue at trial he waived any issue he may have had concerning his pretrial confinement during any post trial appellate review.  Further, since he did not raise the issue, testimony by his commander or the trial counsel concerning his pretrial confinement was, and is, for the purpose of the ABCMR’s review, moot.
3.  The Board is limited to issues of clemency as they pertain to restoring the applicant’s rank, allowing payment of back pay and allowances, and returning funds which were forfeited as part of the court-martial sentence.

4.  Notwithstanding the Board’s ability to act on those issues, as a matter of clemency, the applicant, beyond his own assertions, has not provided any credible evidence that any error or injustice occurred during his pretrial confinement and subsequent court-martial proceedings which would warrant the clemency requested.

5.  Evidence of record confirms that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  The applicant was afforded due process and his rights were protected throughout the court-martial proceedings.  His sentence was appropriate considering all the facts in this case.  

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX___  ___XX__  __XX____  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.




______XXXXXXXX_________
          CHAIRPERSON


INDEX

CASE ID
AR20060004359
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20060227
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.
105.00
2.

3.

4.

5.

6.