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 Governments 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 mans 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 applicants 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 applicants 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.
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