IN THE CASE OF:
BOARD DATE: 18 June 2009
DOCKET NUMBER: AR20090001500
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 reconsideration of the Boards denial of his request to have his discharge upgraded.
2. The applicant states that a supporting letter from a retired lieutenant general (LTG) was not included in his original packet.
3. The applicant provides a letter of recommendation, dated 8 January 2009, and the LTG's "philosophy" in support of his 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 AR20080014349, on 25 November 2008.
2. In a supporting statement, a retired LTG said that he was the commanding general of the 2d Infantry Division as well as the convening authority at the applicant's General Court-Martial proceedings. He offered that during the trial it was a stipulation of expected testimony provided on his behalf relating to the applicant's duty performance. He said that during the court-martial, it was noted that he handpicked the applicant for the position of Senior Food Operations Sergeant for the Commanding General's Mess.
3. The retired LTG said that the applicant was discharged from the service with a felony conviction on his records and he may be required to register as a sex offender. He opined that the final verdict was too severe for what he considered an error in judgment. He added that the decision of the court-martial panel to send a message that the military does not condone any actions of the nature in which the applicant was accused and convicted was well within their authority; however, he maintained that in the applicant's case and based on his service record, he felt that the punishment was somewhat excessive.
4. The applicant also provided the retired LTG's "philosophy" on how working was a blessing.
5. Army Regulation 27-10 (Military Justice) states, in pertinent part, that the convening authority will personally determine whether to refer the charges for trial and the kind of court to which the charges will be referred. This function may not be delegated. The endorsement or other directive referring the charges to a court-martial for trial will be signed by the convening authority or will be authenticated with the convening authority's command line.
6. Additionally, the regulation states that the convening authority will review the record of proceedings of a court and consider the findings, opinions, and recommendations. The convening authority will state at the end of the record, over the convening authority's own signature, approval or disapproval in whole or in part, of the findings, opinions, and recommendations. In taking this action, the convening authority is not bound by the findings, opinions, or recommendations of the court.
DISCUSSION AND CONCLUSIONS:
1. The retired LTG offered that he was the convening authority during the applicant's General Court-Martial proceedings. He added that based upon the applicant's service record, he felt that his punishment was too severe and somewhat excessive for an error in judgment.
2. As the convening authority for the applicant's court-martial proceedings, the retired LTG was responsible for referring the charges for trial and deciding what kind of court-martial to which the charges should be referred. If the retired LTG considered the applicant's "actions" an error in judgment, he should have considered a less serious level of a court-martial. Further, if the retired LTG determined that the punishment imposed by the General Court-Martial panel was too severe, he was not bound to accept their findings, opinions, or recommendations. He was free to disapprove the court's finding of guilt on the sentence to a Bad Conduct Discharge.
3. Nevertheless, the supporting statement provided by the retired LTG, prepared over 6 years after the applicant's trial and considering the general's responsibility as the court-martial convening authority at the time, does not provide any evidence sufficiently compelling to overcome his prior decision made closer in time to the applicant's trial, to approve the applicant's sentence as being legally and factually appropriate. Likewise, the paper on the general's "philosophy" on how working was a blessing is not sufficient evidence and not relevant to the applicant's request for reconsideration.
4. The overall merits of the case, including the supporting statement, are insufficient as a basis for the Board to reverse its previous decision.
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 AR20080014349, dated 25 November 2008.
_______ _ 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) AR20090001500
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090001500
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2013 | 20130015446
The applicant requests removal of all records related to and arising out of the U.S. Army Criminal Investigation Command's (CID's) substantiation of allegations of abusive sexual contact and drunk on duty, to include: a. CID's Report of Inquiry into the alleged sexual assault of a Department of the Army (DA) civilian (February 2013); and b. the following from his Official Military Personnel File (now known as the Army Military Human Resource Record (AMHRR)): * DA Form 2627 (Record of...
ARMY | BCMR | CY2007 | 20070004308C071029
On 24 October 1993, the applicant was charged with assaulting his wife. He told her he needed to call an ambulance to get her to the hospital [where she was eventually treated for nine days]. The Manual for Courts-Martial United States, Part II, Rule 401 (Forwarding and disposition of charges in general) states only persons authorized to convene courts-martial or to administer nonjudicial punishment under Article 15 may dispose of charges.
ARMY | BCMR | CY2014 | 20140010290
The evidence shows he was over 22 years of age at the time of his court-martial proceedings. There is no evidentiary basis for upgrading his bad conduct discharge to honorable or any other character of service. ABCMR Record of Proceedings (cont) AR20140010290 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140010290 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1
ARMY | BCMR | CY2011 | 20110003697
She did not kidnap the victim and she was not trying to pull rank on the victim. On 2 March 1990, the applicant was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), as a result of court-martial with a dishonorable discharge. Simply put, the punitive discharge cannot be ordered executed until all appeals have been exhausted and the conviction is final.
ARMY | DRB | CY2006 | AR20060010077
I received only 15 days of restriction because the Company Commander said it was reasonable self-defense. The second article 15 resulted from an incident which took place one month after I was discharged from the hospital. Facts and Circumstances: Evidence of record shows that on 31 August 2005, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, AR 635-200, by reason of misconductpattern of misconduct (you received a Company...
USMC | DRB | 2003_Marine | MD03-01488
MD03-01488 Applicant’s Request The application for discharge review was received on 20030909. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. Looking back on my own personal expectations coming out of boot camp I can see where I exaggerated..
ARMY | BCMR | CY2015 | 20150005805
The applicant requests removal of a relief for cause (RFC) Officer Evaluation Report (OER) from his Official Military Personnel File (OMPF). On 24 June 2013, The Surgeon General, Lieutenant General (LTG) P_______ D. H_____, appointed BG J___ M. C__, as an investigating officer (IO) under the provisions of AR 15-6 to conduct an informal investigation into the allegations raised by CPT A__ on 17 June 2013 that her chain of command treated her inappropriately, demeaned her, and failed to...
ARMY | BCMR | CY2010 | 20100024016
e. The removal of all Promotion Review Board (PRB) and Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP) and associated records/documentation from his Official Military Personnel File (OMPF) f. To the extent the ABCMR is unable to grant relief, forward his case to the Secretary of the Army (SA). The ABCMR consider only the evidence of record. The applicant provides the following documents: * Email exchange with the Director, ABCMR * Previous ABCMR Record of...
ARMY | BCMR | CY2004 | 20040010425C070208
The applicant states that, on 14 April 2004, he was informed by the VCSA that the CSA was reviewing his retirement application, the DAIG ROI, and the MOC in making a retirement grade determination. By memorandum dated 14 April 2004, the VCSA, General C___, informed the applicant that the Acting SA had carefully reviewed his retirement application and the adverse information attributed to him during his tenure as Director, OFTF. U. S. Army.
AF | DRB | CY2010 | FD-2008-00591
AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL) GRADE AFSN/SSAN Lo SRA eee : — TYPE UOTHC/X PERSONAL APPEARANCE RECORD REVIEW | NAME OF COUNSEL AND OR ORGANIZATION ADDRESS AND OR ORGANIZATION OF COUNSEL MEMBER SITTING uoTHe | OTHER DENY yy “T K+ X*+ ~~ x tee X*+ : Ae ‘ ISSUES A94,08 INDEX NUMBER A75.00 sah IRR ap i 1 |ORDER APPOINTING THE BOARD 2 |APPLICATION FOR REVIEW OF DISCHARGE 3 |LETTER OF NOTIFICATION 4 |BRIEF OF PERSONNEL...