IN THE CASE OF:	  

		BOARD DATE:	        13 JANUARY 2009

		DOCKET NUMBER:  AR20080016931 


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 reconsideration be given to his request that the findings of guilty against him for two violations of Article 121 (Larceny) of the Uniform Code of Military Justice (UCMJ) in his court-martial conviction be overturned, or that he be granted clemency and restored to the rank and pay grade of sergeant first class (SFC)/E-7.

2.  The applicant states that he does not argue in any way that he was wrong to commit the offense for which he pled guilty to [Article 92, UCMJ – Failure to Obey Order or Regulation], but asks that the findings of guilty against him for violations of Article 121 be overturned.  He also states, in effect, that the findings of guilty against him for two violations of Article 121 of the UCMJ are an error and unjust, and that the burden was not met by the government at his summary court-martial to prove beyond a reasonable doubt that he had the intent to permanently deprive the government of a Fleet Services credit card or money borrowed on the card, and therefore, the findings of not guilty are appropriate.  He further states, in pertinent part, that he has served his country for approximately 13 years, and that in all that time, he has not had one single disciplinary problem.  Additionally, he states that he truly regrets the actions that he had taken in wrongfully using the Fleet Services credit card, that he has learned from his mistakes, and requests that he be restored to the rank of SFC/E-7 with a date of rank of 1 August 2006 or that he be granted clemency to grant this relief.

3.  The applicant provides a self-authored memorandum, dated 23 October 2008; a DD Form 2329 (Record of Trail by Summary Court-Martial); a DD Form 458 (Charge Sheet), initially dated 7 May 2007; two sworn statements, dated 
9 and 17 November 2006, from a Soldier with the last name of Tarver; a sworn statement, dated 20 September 2006, from a Soldier with the last name of Williams; a self-authored sworn statement, dated 9 November 2006; an Internal Revenue Service Form 1040 (U.S. Individual Income Tax Return for 2006); and a check, dated 8 May 2005, from the applicant to the General Services Administration in the amount of $1,621.80 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080004463, on 10 July 2008.

2.  The applicant requested that reconsideration be given to his request that the findings of guilty against him for two violations of Article 121 of the UCMJ in his court-martial conviction be overturned.  However, as noted in the previous ABCMR proceedings, Title 10, U.S. Code, section 1552, as amended, does not permit any redress by this Board that would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment resulting from a court-martial conviction.  The Board may elect to change the punishment 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.  As a result, reconsideration of the applicant's request that the findings of guilty against him for two violations of Article 121 of the UCMJ in his court-martial conviction be overturned will not be discussed further in these proceedings.

3.  The applicant stated that he has served his country for approximately
13 years, and that in all that time, he has not had one single disciplinary problem. He also stated that he truly regrets the actions that he had taken in wrongfully using the Fleet Services credit card, and that he has learned from his mistakes.  He further requested that he be granted clemency.

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR does not have the jurisdiction to change the charges, specifications, or findings of a court-martial.  However, it is empowered to change a sentence of a court-martial if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

2.  The applicant's request for reconsideration for clemency was considered, as was his entire record of service.  However, by wrongfully using a government credit card to purchase gasoline and car washes for unofficial business, and stealing money to purchase goods for his personal use, the applicant, then an SFC, severely compromised the trust and confidence placed in him as a senior noncommissioned officer (NCO).  As a senior NCO, he had the duty to support and abide by the Army's policies.  By committing the aforementioned offenses, the applicant knowingly risked a military career, violated the trust and confidence placed in him as a senior NCO, and undoubtedly caused an adverse impact on his chain of command.  Notwithstanding the applicant's contentions, he was not submitted sufficient evidence to show that clemency is warranted in this case.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080004463, dated 10 July 2008.



      ________XXX______________
               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)                                         AR20080016931



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ABCMR Record of Proceedings (cont)                                         AR20080016931



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