IN THE CASE OF:	  

		BOARD DATE:	  	   30 April 2009

		DOCKET NUMBER:  AR20080016785 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that his Summary Court-Martial sentence be reduced on the basis of clemency.  He also requests, in effect, removal of his Record of Court-Martial and removal of the drill sergeant status documents from the performance (P-section) portion of his official military personnel file (OMPF) and placement in the restricted (R-section) portion of his OMPF.

2.  The applicant states, in effect, he desires that all documents relating to his Summary Court-Martial and his removal from the drill sergeant program be moved to his R-section because of numerous errors during the trial.  He further states, in effect, that he received information that there was no further appeal process after his appeal to the brigade commander.  The applicant continues to state, in effect, that he learned he could ultimately apply to Office of The Judge Advocate General (OTJAG), who told him to apply to the Department of the Army Suitability Evaluation Board (DASEB), which turned out to be the wrong agency to move his Summary Court-Martial documents to his R-section.   

3.  The applicant provides two self-authored statements, a copy of his Record of Trial by Summary Court-Martial which concluded on 18 March 2005, a copy of a memorandum from the US Army Trial Defense Service dated 21 March 2005, a copy of a memorandum subject:  Judge Advocate Review of Summary Court-Martial Proceedings dated 31 March 2005, a copy of removal from the drill sergeant program packet concluding on 21 April 2005, a copy of a sworn statement from Private (PVT) H-----z dated 26 September 2005, a copy of a memorandum to the DASEB dated 24 April 2008, three letters of recommendation, and a copy of a memorandum from the DASEB dated            14 August 2008 in support of his application.

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.  At the time of his request, the applicant is on active duty in the Regular Army, serving in the rank of staff sergeant, pay grade E6.  The highest rank he held was sergeant first class, pay grade E-7.

3.  The applicant's record shows no acts of valor, significant achievement or service warranting special recognition.

4.  On 18 March 2005, the applicant was found guilty by a Summary Court-Martial of violation of Article 92 of the Uniform Code of Military Justice by violating a lawful general regulation, to wit: Paragraph 4j, Fort Jackson Regulation 600-3, by wrongfully engaging in an illegal association with PVT H--------z, a female Soldier in training on or about 16 September 2004.  The Court sentenced him to a reduction to pay grade E-6, forfeiture of $1,339.00 per month for one month, and restriction to the limits of South Carolina for 45 days. 

5.  On 21 March 2005, through counsel from the US Army Trial Defense Service, Region II, Jackson Field Office, Fort Jackson, South Carolina the applicant submitted a Petition for Clemency requesting that the findings of the Record of Court-Martial be disapproved.  He requested that he be granted clemency and approval of only that much of the sentence which would result in the adjudged restriction.  Counsel requested that a copy this submission be included in all records of trial.  Counsel stated that his request was appropriate for the following reasons:

	a.  Upon receipt of a motion to exclude evidence on the basis of relevance, the Summary Court-Martial Officer, Major R-----n explained that she would ask the Administrative Law office if she could make a recommendation to redraft to include all of the dates and evidence.  

	b.  Evidence was used in the hearing which was not provided to the defense.  

	c.  There seemed to be an inappropriate amount of credence granted to hearsay.  Hearsay is an "out of court" statement offered for the truth of the matter asserted" and should not be allowed unless it falls into an exception.    

	d.  The Summary Court-Martial took a particularly long time to come to trial.  

	e.  Sergeant Major S----t of the US Army Aviation School states that the applicant possesses unlimited potential and of the Soldiers he has trained the applicant is in the top 5 percent.

	f.  The punishment the applicant received is significant for a Soldier such as this.  The punishment will hinder his career and hurt him financially.

	g.  The applicant's letter speaks volume.  He asks for clemency for his family.

6.  The applicant submitted a copy of a memorandum dated 31 March 2005, subject: Judge Advocate Review of the Summary Court-Martial which states that the applicant's Summary Court-Martial is legally sufficient and the law requires no corrective action.  The memorandum also stated that the summary court had jurisdiction over both the applicant and the charged offenses, the charge and specification to which there was a finding of guilty, and the sentence was within the limits of the law.  The memorandum further states that the applicant and his counsel provided post-trial submissions and the following allegations of error:

	a.  After receipt of a motion to exclude evidence on the basis of relevance, the summary court officer erred in asserting that she would seek legal advice on whether she could recommend the charges be redrafted to change the dates of the offenses.  The applicant indicated this was not done but gave the appearance that the summary court martial officer had already found the applicant guilty.  The Judge Advocate's response stated that there was no legal objection to the summary court-martial seeking legal advice on whether to report a potential irregularity in the charge sheet or correct errors on the charge sheet and amend charges and specifications.

	b.  Evidence was used in the hearing that was not provided to the defense.  The applicant alleges a phone record was entered during the questioning of PVT P----s.  The Judge Advocate responded that these records were not admitted into evidence nor were they otherwise considered by the summary court-martial in making findings.

	c.  The evidence presented did not support a guilty verdict.  The Judge Advocate responded that there was sufficient evidence to support the summary court-martial finding of guilt.

	d.  The defense objected to a phone witness who gave hearsay statements during the trial.  There are a variety of exceptions to the hearsay rule that would allow consideration of hearsay evidence.  There is nothing in the record to indicate that proper evidentiary procedures were not followed.  The memorandum contained a handwritten statement upon which the court-martial officer sustained the objection.  There is no legal basis to find that the summary court officer's ruling was clearly erroneous or otherwise legally in error or to find that the summary court officer considered the witness's testimony for an unlawful purpose. 

7.  On 18 April 2005, the applicant was removed from the Drill Sergeant Program based on the outcome of the Summary Court-Martial proceedings.  The applicant’s Drill Sergeant Identification Badge and skill qualification identifier (SQI) “X” were withdrawn in accordance with Army Regulation 614-200, paragraph 5-10b.  The documentation for this action was filed in the performance section of the applicant’s OMPF, the Career Management Information File (CMIF), and the local unit file.

8.  On 21 April 2005, the applicant acknowledged receipt of the memorandum removing him from the Drill Sergeant Program and elected not to make a statement on his behalf.

9.  The applicant submitted a copy of a Sworn Statement dated 26 September 2005, from PVT H-------z, in which she states, in effect, that she made up the relationship between herself and the applicant.  

10.  On 24 April 2008, the applicant submitted an application to the DASEB requesting transfer of the derogatory date from his performance section to his restricted section.  He included three letters of recommending his court-martial documents be moved to his R-section.

11.  The applicant submitted a copy of a memorandum from the DASEB, dated 14 August 2008.  The memorandum shows that the applicant requested transfer of the April 2005 Summary Court-Martial from the performance portion to the restricted portion of his OMPF.  The DASEB explained to the applicant that in accordance with Army Regulation 600-37 (Unfavorable Information), which established the policies and procedures for their Board, that only letters of reprimand, admonition, or censure, may be subject to transfer to the restricted section.  Transfer of Record of Trial by Summary Court-Martial did not fall under their jurisdiction and returned the request by the applicant without action.  

12.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides, in pertinent part, that all personnel information recorded under the authority of this regulation is the property of the United States Government.  Once recorded, it will not be removed except as provided by law or this regulation.  Types of authorized military personnel files are the OMPF, Military Personnel Records Jacket (MPRJ), Career Management Individual File (CMIF), and the Classified Personnel Record (CPR).  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from a section or moved to another part of the section unless directed by one or more of the following: (1) The Army Board for Correction of Military Records (ABCMR); (2) The DASEB; (3) Army appeal boards; (4) Chief, Appeals and Corrections Branch, Human Resources Command (5) The OMPF custodian when documents have been improperly filed; (6) Commander, Human Resources Command, ATTN: HRC-PDO-PO, as an approved policy change to this regulation; (7) Chief, Appeals Branch, Human Resources Command, St. Louis, Missouri ; (8) Chief, Appeals Branch, National Guard Personnel Center.   Documents designated for transfer from the performance or service section will be put on the restricted section, if authorized.  When discovered by the custodian or requested by the Soldier concerned, transfer restricted section documents mistakenly filed on the performance or service section to the restricted section.  Unless approved by the Deputy Chief of Staff, Personnel or by the Human Resources Command Promotions Branch, this action does not justify standby or special selection board consideration. 

13.  Army Regulation 600-8-104, chapter 2, contains guidance on the OMPF.  Table 2-1 outlines the composition of the OMPF.  It states, in pertinent part, that court-martial orders will be filed in the performance section of the OMPF when there is an approved finding of guilt on at least one specification.  There are no provisions for automatically transferring court-martial orders to the restricted portion of the OMPF.

14.  Army Regulation 600-37 provides filing instructions for unfavorable information on the OMPF.  Chapter 7 of Army Regulation 600-37 provides, in pertinent part, the policy for appealing/petitioning for removal from or transfer of documents in the OMPF and the policy for removing/transferring letters of reprimand, admonition, censure, and Article 15s.  However, there are no provisions provided for the removal or transfer of a court-martial order.

15.  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 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 that the Summary Court-Martial proceedings and the removal from the drill sergeant status documents currently filed on the 
P-section of his OMPF should be removed or transferred to the R-section of his OMPF because of numerous errors in the court-martial process were carefully considered and found to be without merit.

2.  Evidence shows the Summary Court-Martial order was properly filed in accordance with governing regulations.  This Board has no authority to set aside a court-martial conviction.  The applicant had the opportunity to cross examine PVT H-----z during the trial, and he had the right to call witnesses to dispute PVT H----z's testimony.  He provides insufficient evidence to show why this Board should reduce his sentence based on clemency.  No basis in law or equity exists to move the document to the restricted portion of his OMPF.

3.  Because the applicant was removed from the Drill Sergeant Program as a result of a Summary Court-Martial, the documentation of this action was properly filed in the performance portion of his OMPF.

4.  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

____X___  ____X____  ____X____  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.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080016785



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ABCMR Record of Proceedings (cont)                                         AR20080016785



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