IN THE CASE OF:	  

		BOARD DATE:	        12 MAY 2009

		DOCKET NUMBER:  AR20080017513


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, his conviction by a general court-martial (GCM) be set aside.

2.  The applicant states his bad conduct discharge (BCD) was unjust and inappropriate.  He adds that his lead appellate defense counsel was ineffective because she was not a member of the Virginia State Bar or the District of Columbia Bar; she did not contact him until 6 months after his appeal was filed; and she refused to appeal his case to the U.S. Supreme Court.

3.  The applicant provides:

	a.  a copy of U. S. Court of Appeals for the Armed Forces (CAAF) Opinion Number 96-0841 argued 2 December 1997 and decided 12 March 1998;

	b.  Orders 37-505, Headquarters, 3rd Infantry Division and Fort Stewart, dated 6 February 2007, reassigning the applicant to the Fort Knox, KY, Regional Confinement Facility;

	c. General Court-Martial Order Number 27, Headquarters, Fort Stewart, GA, dated 11 September 2007;

	d.  a copy of an internet document, Verification of Military Experience and Training, dated 1 April 2008;

	e.  a copy of a letter with an explanation of the appeal process (page 2) from the Virginia State Bar to the applicant, dated 16 October 2008, informing him that his former lead defense appellate counsel is not a member of the Virginia State Bar;

	f.  a copy of a document entitled "Virginia State Bar – Inquiries About Lawyers";

	g.  an internet document from the District of Columbia Bar showing no membership records for the applicant’s former lead appellate defense counsel;

	h.  an internet document from the Capital Defense Network entitled "Perfecting Appeal";

	i.  a copy of a letter from the applicant to his appellate defense counsel for his appeal before the U.S. Army Court of Criminal Appeals, dated 1 October 2007;

	j.  a copy of the Brief on Behalf of Appellant before the U.S. Army Court of Criminal Appeals, submitted on 14 February 2008;

	k.  a copy of a letter from the U.S. Army Legal Services Agency (USALSA), Arlington, VA, dated 3 March 2008, advising him that his case was submitted to the U.S. Army Court of Criminal Appeals;

	l.  a copy of the decision of the U.S. Army Court of Criminal Appeals, dated 31 March 2008;

	m.  a copy of a letter from the USALSA to the applicant, dated 3 April 2008, advising him of the decision of the U.S. Army Court of Criminal Appeals, and his right to petition the CAAF;

	n.  a copy of a document from the Office of the Clerk of Court, U.S. Army Judiciary, Arlington, VA, dated 3 April 2008, advising the applicant of his appellate rights before the CAAF;

	o.  a copy of DA Form 4918-R (Petition for Grant of Review in the U.S. Court of Appeals for the Armed Forces) signed by the applicant and dated 19 April 2008;

	p.  a copy of the applicant’s Supplement to Petition for Grant of Review before the CAAF filed on 23 May 2008;

	q.  a copy of a letter from the USALSA, Arlington, VA, dated 23 May 2008, forwarding to the applicant a copy of the pleading filed on his behalf with the CAAF;

	r.  a copy of a letter from the applicant to the CAAF, dated 17 October 2008, requesting a new appellate defense counsel;

	s.  an internet document entitled "Rules of Practice and Procedure – U.S. Court of Appeals for the Armed Forces" showing Rule 13 (Qualifications to Practice);

	t.  a copy of an unidentified page showing Rule 7 (Computation of Time), Rule 8 (Qualification of Counsel), and Rule 8.1 (Qualification of Counsel);

CONSIDERATION OF EVIDENCE:

1.  The applicant was a staff sergeant (SSG/E-6) serving as a U.S. Army recruiter assigned to the Gainesville, FL, Recruiting Company.

2.  On 11 September 2007, the applicant was tried by a GCM for:

	a.  violating Article 120, Uniform Code of Military Justice (UCMJ), in that he did, at or near Gainesville, FL, on or about 19 May 2005, rape a female applicant for enlistment;

	b.  violating Article 134, UCMJ, in that he did, at or near Gainesville, FL, on or about 19 May 2005, commit an indecent assault upon a female applicant for enlistment by pulling her arm to force her on the bed, pinning her body down with his body, kissing her on the face, and/or licking her neck and left breast with the intent to gratify his lust or sexual desires;

	c.  violating Article 92, UCMJ, in that he did, at or near Gainesville, FL, on or about 19 May 2005, violate a lawful regulation, to wit:  paragraph 3-1, U.S. Army Recruiting Command Regulation 56-1, dated 20 December 1999, by wrongfully engaging in unofficial use of a government vehicle by using said vehicle to transport himself and a female applicant for enlistment to his residence to engage in sexual conduct; and

	d.  violating Article 107, UCMJ, in that he did, at or near Gainesville, FL, on or about 19 May 2005, with intent to deceive, make a false official statement to a Gainesville Police Officer, to wit:  When [applicant] told [police officer] that no black female applicants had been in his apartment on 19 May 2005, or words to that effect, which statement was totally false, and was then known by [applicant] to be so false.

3.  The applicant pled not guilty, and was found not guilty to violating Article 120, rape; the Article 134 charge was dismissed on motion of Defense Counsel; he pled not guilty to violating Article 92, violating a lawful regulation, but was found guilty; and he pled not guilty to violating Article 107, making a false official statement, but was found guilty.

4.  The applicant was sentenced to be reduced to Private (PVT/E-1), to forfeit all pay and allowances, to be confined for 3 months, and to be discharged with a BCD.  The sentence was approved.

5.  On 31 March 2008, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

6.  On 7 July 2008, the CAAF denied the applicant’s petition for grant of review.

7.  The applicant provides documents which he contends show his lead appellate defense counsel before the CAAF was not qualified to act on his behalf because she [counsel] was not a member of the Virginia State Bar or the District of Columbia Bar.

8.  The Manual for Courts-Martial (MCM) at Rule 1202 (Appellate Counsel) states only certified counsel under Article 27(b) may be detailed as appellate defense counsel.  To be certified by the Judge Advocate General concerned under Article 27(b), a person must be a member of the bar of a Federal court or the highest court of a State.  The Judge Advocate General concerned may establish additional requirements for certification.

9.  The MCM at Rule 1205 (Review by the Supreme Court) provides the U.S. Supreme Court may not review by writ of certiorari any action of the CAAF in refusing to grant a petition for review.

10.  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 change a discharge due to matters which should have been raised in the appellate process.  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 requests his conviction be set aside because his lead appellate defense counsel was not a member of the Virginia State Bar or the District of Columbia Bar during his appeal to the CAAF; she did not contact him until 6 months after his appeal was filed; and she refused to appeal his case to the U.S. Supreme Court.

2.  The applicant’s argument concerning the qualifications of his lead appellate defense counsel are without merit.  In alleging that his lead appellate defense counsel was not a member of the Virginia State or District of Columbia Bars, he has not shown that she failed to meet the qualifications of Article 27(b).  Judge Advocate officers enter military service from all 50 states; they may be members of any State Bar, not just Virginia or the District of Columbia.

3.  The applicant’s appellate review before the U.S. Army Court of Criminal Appeals was decided on 31 March 2008.  He was notified of his appellate rights before the CAAF on 3 April 2008.  He responded by completing a DA Form  4918-R on 19 April 2008, requesting the court be petitioned for review of his conviction.  On 23 May 2008, his lead appellate defense counsel contacted him by letter enclosing a copy of the pleading she filed on his behalf with the CAAF and providing him with her telephone number.  The applicant is not correct in stating that she did not contact him until 6 months after his appeal was filed.

4.  The applicant’s petition for a grant of review of his case was denied by the CAAF.  His contention that his lead appellate defense counsel refused to appeal his case to the U.S. Supreme Court is without merit.  The MCM at Rule 1205 provides the U.S. Supreme Court may not review by writ of certiorari any action of the CAAF in refusing to grant a petition for review.  The appellate process ended for the applicant when his grant of review was denied.

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.



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.



      ________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)                                         AR20080017513



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017513



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1