Search Decisions

Decision Text

ARMY | BCMR | CY2006 | 20060015694
Original file (20060015694.txt) Auto-classification: Denied


RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 October 2007
	DOCKET NUMBER:  AR20060015694 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Ms. Ann Campbell

Chairperson

Ms. LaVerne Douglas

Member

Mr. Jeffrey Redmann

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 that his general court-martial conviction be overturned.

2.  The applicant states, in effect, that throughout his trial to date he has maintained his innocence of the charges and that he has provided an adequate amount of evidence to prove his case; however, it was not used.  He contends that the rape victim is a dishonest person who is still committing perjury, that this is a case of “he say she say,” and that the investigation was conducted poorly.   

3.  In a statement, dated 2 November 2006, the applicant points out that he was court-martialed on 27-28 November 2001 for rape and indecent assault by a military panel and that he did not commit either crime.  He states that he completed 19 years and 10 months at the time of his court-martial and that his military attorney advised him to plead guilty to the sexual assault charge.  He states that the Government’s case rested solely upon the testimony of a dishonest person who is currently pending homicide charges stemming from another incident during which she lied regarding her role in a man’s death.  He also points out that the rape victim is under investigation for three separate incidents, that she filed numerous charges against members of his family after the alleged rape, and that all charges were dismissed in July 2001.  He further states that the victim of the sexual assault fabricated her story, too.     

4.  The applicant provides a statement, dated 2 November 2006 with 
18 enclosures outlined in this statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted on 18 January 1982, served as an administrative specialist, and remained on active duty through continuous reenlistments.  He attained the rank of staff sergeant. 

2.  On 28 November 2001, the applicant was convicted by a general court-martial of raping a female civilian and committing an indecent assault upon a female Soldier (a specialist).  He was sentenced to be reduced to E-1, to be confined for 4 years, and to be discharged from the service with a dishonorable discharge.  On 26 July 2002, the convening authority approved the sentence.

3.  On 3 March 2006, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  On 24 August 2006, the U.S. Court of Appeals for the Armed Forces denied the applicant’s petition for review.


4.  The convening authority ordered the dishonorable discharge executed on 
30 November 2006.

5.  Accordingly, the applicant was discharged with a dishonorable discharge on 
6 June 2007 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served a total of 22 years, 8 months, and
11 days of total active service with 980 days of lost time due to confinement.   

6.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed. 

7.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions relate to evidentiary and procedural matters that should have been addressed and conclusively adjudicated in his general court-martial and appellate proceedings.

2.  By law, this Board cannot disturb the finality of a court-martial conviction.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

AC____  ___LD___  ____JR__  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.




__Ann Campbell________
          CHAIRPERSON




INDEX

CASE ID
AR20060015694
SUFFIX

RECON

DATE BOARDED
20071002
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
105.0000
2.

3.

4.

5.

6.


Similar Decisions

  • ARMY | BCMR | CY2001 | 2001062207C070421

    Original file (2001062207C070421.rtf) Auto-classification: Approved

    The applicant’s counsel appealed his case to the United States Army Court of Criminal Appeals contending that the evidence of record was not legally or factually sufficient to support a finding of rape, that the government failed to prove beyond a reasonable doubt that the applicant was not mistaken as to the alleged victim’s lack of consent, the military judge committed prejudicial error when he denied a defense motion to produce a witness whose testimony would have challenged the...

  • ARMY | BCMR | CY2009 | 20090015646

    Original file (20090015646.txt) Auto-classification: Denied

    Counsel states that the applicant served for over 19 years in the Army, that during his military service he was awarded five awards of the Army Commendation Medal and five awards of the Army Achievement Medal, and that his NCOERs show his military performance was exemplary. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but...

  • ARMY | BCMR | CY2012 | 20120021472

    Original file (20120021472.txt) Auto-classification: Denied

    COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Despite presenting numerous good character statements and having a pristine military record with no prior disciplinary actions, the military judge sentenced the applicant to the unconscionably harsh and inequitable sentence of a dismissal and 9 months confinement. The indecent assault charge is another area where it is evident the government did not believe they had a very good case.

  • ARMY | BCMR | CY2012 | 20120013651

    Original file (20120013651.txt) Auto-classification: Denied

    He states, in effect, he would like his discharge upgraded so he would be eligible for Department of Veterans Affairs (VA) benefits as an Operations Desert Shield/Desert Storm veteran who served honorably from 1987 through 1996. The applicant's military records show he was appointed in the U.S. Army Reserve (USAR) Medical Services Corps as a captain on 23 June 1987 with 10 years of constructive service credit. Due to the unavailability of records, AHRC officials were unable to provide the...

  • ARMY | BCMR | CY2010 | 20100023774

    Original file (20100023774.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 2 June 2011 DOCKET NUMBER: AR20100023774 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. On 30 November 2006, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

  • ARMY | BCMR | CY2009 | 20090005952

    Original file (20090005952.txt) Auto-classification: Denied

    The applicant’s record contains a copy of Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, General Court-Martial (GCM) Order Number 163, dated 22 June 2006, which documents the following charges, pleas, and findings: a. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The evidence of record shows the applicant was convicted by a GCM and he received a dishonorable discharge.

  • ARMY | BCMR | CY2012 | 20120017494

    Original file (20120017494.txt) Auto-classification: Denied

    He states he had a previous honorable discharge from active duty for training as a member of the U.S. Army Reserve (USAR). Chapter 11 provides that a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records...

  • ARMY | BCMR | CY1997 | 199709385

    Original file (199709385.rtf) Auto-classification: Denied

    • The applicant denies that he sexually abused or assaulted his daughter; • There is no direct, probative or corroborating evidence that he sexually abused his daughter; • Applicant’s daughter never testified under oath regarding the allegations; • Applicant’s plea of guilty was made expressly for the purpose of his wife and daughter not having to testify at a civilian criminal trial; • The applicant’s quality of service and performance of duty attest to his good character; and • The board...

  • ARMY | BCMR | CY1997 | 199709385C070209

    Original file (199709385C070209.TXT) Auto-classification: Denied

    Counsel states that the applicant contends that his discharge was materially and legally in error, and unjust, in that: The applicant denies that he sexually abused or assaulted his daughter; There is no direct, probative or corroborating evidence that he sexually abused his daughter; Applicant’s daughter never testified under oath regarding the allegations; Applicant’s plea of guilty was made expressly for the purpose of his wife and daughter not having to testify at a civilian criminal...

  • ARMY | BCMR | CY2014 | 20140006945

    Original file (20140006945.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 4 December 2014 DOCKET NUMBER: AR20140006945 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests an upgrade of his dishonorable discharge to a general, under honorable conditions discharge. It stipulates that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.