RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 October 2007
	DOCKET NUMBER:  AR20070003361 


	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

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Susan A. Powers

Chairperson

Mr. Edward E. Montgomery

Member

Mr. Qawiy A. Sabree

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 court-martial sentence be set aside.

2.  The applicant states that his court-martial sentence is unconstitutional.

3.  The applicant provides copies of a DD Form 490 (Record of Trial); DA Form 4430-R (Department of the Army Report of Result of Trial); United States Army Court of Criminal Appeals, Army 20000094, Memorandum Opinion, dated
25 January 2002; United States Army Court of Criminal Appeals, Army 20000094, Order, dated 21 February 2002; DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 2 May 2003; and a
2-page, undated Letter in Support.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military service records show that he enlisted in the U.S. Army Reserve (USAR) on 12 November 1976 and entered active duty in the Regular Army (RA) on 30 November 1976.  He was trained in, awarded, and served in military occupational specialty (MOS) 64C (Motor Transport Operator).  The applicant was honorably released from active duty (REFRAD) on 29 November 1979, after completing 3 years of active service, and transferred to the USAR Control Group (Standby) to fulfill his Reserve Military Service Obligation.

3.  The applicant's military service records show that he enlisted in the Air National Guard of Wyoming as a Reserve of the Air Force on 9 February 1984, where he served as a Law Enforcement Specialist until he was separated on
10 July 1987.  On 11 July 1987, he enlisted in the Air National Guard of Maine and served as a Law Enforcement Specialist until he was separated on 31 July 1988.  On 1 August 1988, he enlisted in the Air National Guard of Nevada as a Reserve of the Air Force and served as a Law Enforcement Specialist until he was separated on 23 March 1989.

4.  On 24 March 1989, the applicant enlisted and entered active duty in the RA.  He was trained in, awarded, and served in MOS 63B (Light Wheeled Vehicle Mechanic).  On 28 May 1992, the applicant reenlisted for a period of 4 years.  The highest rank he attained while serving on active duty was sergeant (SGT)/ pay grade E-5.  

5.  The applicant’s military service records contain a DD Form 458 (Charge Sheet), dated 16 December 1994, that shows the company commander preferred court-martial charges against the applicant for his violation of Article 134 of the Uniform Code of Military Justice (UCMJ), as follows:  Specification 1, that on diverse occasions, on or about April 1993, commit indecent acts upon the body of Samantha S_______, a female under 16 years of age, not the wife of the applicant; Specification 2, that on or about May 1994 and June 1994, commit a certain indecent act, to wit: attempt to videotape his step-daughter, Samantha S_______, naked; and Specification 3, that on or about January 1994 and February 1994, take indecent liberties with Samantha S_______, a female under 16 years of age, not the wife of the applicant.

6.  The applicant’s military service records contain a DD Form 458, dated
15 March 1995, that shows the applicant, without authority, did on or about
31 January 1995, absent himself from his unit and remained so absent in a deserter status until on or about 14 February 1996.  Based on this absence, the applicant’s commander preferred an additional charge for being absent without leave (AWOL).

7.  The applicant’s military service records contain a DD Form 553 (Deserter/ Absentee Wanted by the Armed Forces), dated 16 July 1996 and DD Form 616 (Report of Return of Absentee), dated 11 August 1999.  These documents show, in pertinent part, that the applicant went AWOL at 1300 hours on 20 June 1996, was apprehended by civil authorities at 1510 hours on 11 August 1999, and was returned to military control on 11 August 1999.  Based on this absence, the applicant’s commander preferred an additional charge for desertion.  He also preferred an additional charge for disobeying a noncommissioned officer.

8.  On 4 February 2000, the applicant pled guilty at a general court-martial to being AWOL from 31 January 1995 to 15 February 1996.  A panel of members convicted the applicant, contrary to his pleas, of committing indecent acts against a child under the age of 16, taking indecent liberties with a child under the age of 16, disorderly conduct, and desertion.  The panel found the applicant not guilty of a second charge of indecent liberties with a child under the age of 16 and disobeying a noncommissioned officer, but found him guilty of attempted indecent liberties with a child under the age of 16 and failure to obey an order or regulation.  The court sentenced the applicant to a dishonorable discharge and confinement for 12 years.

9.  On appeal to the United States Army Court of Criminal Appeals (ACCA), the applicant contended that his conviction for the lesser included offense of attempted indecent liberties with a child under the age of 16 was improper because the trial judge failed to instruct the members on the elements for the offense of “attempt.”  On 25 January 2002, ACCA, in a memorandum opinion, agreed with the applicant and set aside the applicant’s conviction for this offense. The Court noted that, at trial, the military judge found the disorderly conduct specification multiplicious for sentencing with the attempted indecent liberties offense.  Based on this finding by the trial judge, the ACCA concluded that the applicant was not prejudiced by the trial court’s instructional error.

10.  The applicant filed a motion for reconsideration on 11 February 2002.  On
21 February 2002, the ACCA denied the applicant’s motion.  On 6 August 2002, the U.S. Court of Appeals for the Armed Forces denied the applicant’s petition for review.

11.  The applicant’s military service records contain a copy of Headquarters, United States Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, General Court-Martial Order Number 84, dated 30 September 2002.  This order shows that pursuant to Article 66, UCMJ, only so much of the findings of guilty of Specifications 3 of Charge I was set aside and Specification 3 of Charge I was dismissed.  This order also shows, in pertinent part, that the remaining findings of guilty and the sentence of confinement for 12 years, and a Dishonorable Discharge, adjudged on
4 February 2000, was affirmed.  This document further directed that the dishonorable discharge would be executed.

12.  The DD Form 214, issued to the applicant on the date of his separation, on
2 May 2003, shows that he was separated with a Dishonorable Discharge under the provisions of Army Regulation 635-200, Chapter 3, Section IV, by reason of court-martial.  It also shows that during the period of service under review, the applicant had completed a total of 6 years, 1 month, and 1 day of creditable active military service, had accrued 380 days of time lost due to being AWOL, and was retained in service 2,532 days for the convenience of the government.  

13.  In support of his application, the applicant provides a copy of his Record of Trial Cover Sheet; Department of the Army Report of Result of Trial; ACCA, Army 20000094, Memorandum Opinion, dated 25 January 2002; ACCA, Army 20000094, Order, dated 21 February 2002; and DD Form 214, with an effective date of 2 May 2003, which serve to substantiate the evidence presented previously in this Record of Proceedings.  

     a.  The applicant also provides a 2-page, undated Letter in Support of his application.  This document shows, in pertinent part, that the mandatory review conducted by the ACCA resulted in the dismissal of Specification 3 of Charge I, but left the sentence of 12 years confinement and a Dishonorable Discharge intact stating “error noted.”  This document also shows that, at the court-martial, the panel sentenced the applicant to 12 years confinement based on court instruction that the maximum possible sentencing range was 19 years.  However, on appeal, after dismissal of Specification 3 of Charge I, this document indicates that the maximum possible sentencing range was 12 years and 4 months.  This document maintains that the Supreme Court of the United States ruling in Brown v. Sanders, 546 U.S. 212 (2006), renders the applicant’s sentence unconstitutional.

     b.  The Letter in Support also argues that the Supreme Court of the United States ruled that an invalidated sentencing factor is a constitutional violation and that the specification dismissed by the ACCA was a sentencing factor.  This letter also outlines the two narrow exceptions in which the Supreme Court ruling would apply as: (1) the new rule is fully retroactive and (2) that a constitutional violation must be found to be harmless beyond a reasonable doubt.

     c.  The applicant concludes by asking that his sentence be either dismissed, rescinded, invalidated, vitiated, or set aside as an unconstitutionally imposed sentence based on the fact that the reassessed sentence was not found to be harmless beyond a reasonable doubt.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates, in pertinent part, that a Soldier will be given a Dishonorable Discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.


15.  Title 10 of the United States Code, section 1552, as amended, does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge or grant sentencing relief if clemency is determined to be appropriate.

16.  Brown v. Sanders addresses sentencing factors, or special circumstances, that a trial court must find before imposing a sentence of death.  It does not govern a military Court of Criminal Appeals decision to reassess a sentence after dismissing a charge.

17.  The Army Court of Criminal Appeals may, in some circumstances, reassess a sentence if it sets aside a charge or specification but leaves others intact.  If the Court can determine that, absent the error, the sentence would have been at least of a certain magnitude, then it may cure the error by reassessing the sentence rather than ordering a sentencing rehearing.  See U.S. v. Sales, 
22 U.S. 305, 307 (CMA 1986.)

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant’s rights were protected throughout the court-martial process.    The ACCA appropriately reassessed the applicant’s sentence under the standard set forth in U.S. v. Sales.  Brown v. Sanders does not apply to military appellate courts in this context.

2.  By law, any redress by this Board of the finality of a court-martial conviction
is prohibited.  The Board is only empowered to change a discharge or reassess all or a portion of a sentence if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The applicant sexually molested a child, his step-daughter, on numerous occasions, engaged in disorderly conduct by hiding a camera to videotape his young stepdaughter, and then deserted to flee justice once his heinous acts came to light.  Under these circumstances, the applicant received an appropriate, if not lenient sentence.  The Board finds that clemency in any form is not warranted.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting the applicant’s request.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___SAP__  ___EEM_  ___QAS_  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.




____ Susan A. Powers____
          CHAIRPERSON




INDEX

CASE ID
AR20070003361
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/10/04
TYPE OF DISCHARGE
DD
DATE OF DISCHARGE
20030502
DISCHARGE AUTHORITY
AR 635-200, Chapter 3, Section IV
DISCHARGE REASON
Court-Martial, Other
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
105.0100.0000
2.

3.

4.

5.

6.