BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090004264 


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 that his dismissal from the service be corrected to show he was placed on the Retired List with retirement benefits retroactive to the date of his dismissal.

2.  The applicant states that he believes there is a significant probability that the court members, the convening authority, and the majority sentenced or approved the sentence based upon charges resulting in acquittal or charges that were withdrawn.  He states an accused should be sentenced only for the offenses of which he was found guilty.

3.  The applicant states many of the charges in his first general court-martial were contrived and assisted by his ex-wife's father, who served as a GS-13 on the staff of the Department of the Army Inspector General (DAIG).   He states his second general court-martial was thoroughly contrived and prejudicial in nature and resulted in the convening authority's desire to punish him more.  He states he believes that the system was insensitive to African American Solders and therefore he does not feel that he received fair treatment in the prevailing environment after the conduct and prejudicial treatment resulting from the first general court-martial.

4.  He states the circumstances that led to the events that resulted in the destruction of his Army officer career were rooted in his marriage and the poor management of the relationship with his wife.  He states his ex-wife turned to her 

father working at DAIG and he articulated her allegations in writing through IG channels to the U.S. Army.

5.  The applicant chronicles the events which led to his dismissal, details what he views as errors and injustices, and claims the dissenting member of the U.S. Army Court of Military Review verifies his punishment was too harsh.

6.  The applicant provides, in support of his application, copies of United States Army Court of Military Review, ACMR 8800363, dated 5 January 1989; Headquarters, Department of the Army, General Court-Martial Order Number 27, dated 26 September 1989; and Headquarters, Department of the Army, General Court-Martial Order Number 5, dated 31 January 1992.

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.  After having served 11 months and 10 days of active enlisted service the applicant was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 26 July 1967.

3.  The applicant was assigned in the Republic of Vietnam during the period from May 1968 to July 1969.

4.  On 1 May 1984, the applicant was promoted to lieutenant colonel and on 
18 May 1984 he was commissioned in the Regular Army (RA).

5.  The applicant went before a general court-martial that was concluded 
on 11 February 1988.  

	a.  he pleaded not guilty to and he was found not guilty of one specification of dereliction of duty from 29 August 1985 to 15 August 1987.  He pleaded not 
guilty of three specifications of violating a lawful general regulation by wrongfully using a Government vehicle from 29 August 1985 until 28 February 1987, from April 1986 to April 1987, and from August 1985 to April 1986.  He was found guilty of two specifications for the periods from April 1986 to April 1987 and from August 1985 to April 1986.

	b.  he pleaded not guilty and he was found not guilty of using cocaine, using marijuana, and wrongfully distributing some amount of cocaine.

	c.  he pleaded not guilty and he was found not guilty of larceny of petroleum, oils, and lubricants.

	d.  he pleaded not guilty and he was found not guilty of two specifications of wrongfully and unlawfully making a false sworn statement.

	e.  he pleaded not guilty to five specifications of an additional Charge I for larceny of approximately $113.28, $358.20, $460.77, $211.26, and $380.66.  He was found guilty of two of the specifications of larceny of approximately $460.77 and $380.66.

	f.  he pleaded not guilty to five specifications of an additional Charge II for presenting a false claim on or about 18 March 1986 ($113.28), on or about 
2 June 1986 ($358.20), on or about 30 March 1987 ($460.77), and on or about 
19 May 1987 ($211.26), and again on or about 19 May 1987 ($380.66).  He was found guilty of three of the specifications of presenting a false claim on or about 18 March 1986, 30 March 1987, and one incident on 19 May 1987.

	g.  he pleaded not guilty and was found not guilty of obstruction of justice.

	h.  his sentence consisted of dismissal, reprimand, forfeiture of all pay and allowances, payment of a fine of $6,000 to the U.S. Government, and, in the event the fine is not paid within one year, confinement for one year.  The sentence was adjudged on 11 February 1988.

6.  On 7 June 1988, the General Court-Martial Convening Authority (GCMCA) approved the sentence of forfeiture of two-thirds pay per month while not confined until the dismissal is executed, and the remainder of the sentence.  If the accused is confined for nonpayment of the fine, forfeiture of all pay and allowances for the period of confinement is approved and will be executed.  The GCMCA also reprimanded the applicant.  The GCMCA stated the applicant was the U.S. Representative to the NATO HAWK Management Office in Paris, 
France and served in a position of great responsibility and high visibility.  The GCMCA stated the applicant abused his position of trust and responsibility by submitting false claims.  The GCMCA stated the applicant's misconduct had 
become common knowledge among the NATO representatives at the HAWK Management Office.  The GCMCA stated the applicant had embarrassed the U.S. Army and his command.  The GCMCA stated that an officer of the applicant's maturity and experience should have realized the seriousness of his misconduct.  The GCMCA stated the applicant so disgraced himself and compromised his standing and integrity as an officer that further productive service was no longer possible.

7.  On 15 December 1988, the applicant went before a second general court-martial.

	a.  he pleaded not guilty and he was found not guilty of larceny.

	b.  he pleaded not guilty and he was found guilty of presenting a false claim of an amount greater than $1,000.00 and making a false sworn statement.

	c.  his sentence consisted of dismissal, confinement for 1 year, and forfeiture of all pay.  The sentence was adjudged on 15 December 1988.

8.  The convening authority approved the sentence and ordered the sentence, with the exception of the dismissal, to be executed.

9.  On 7 January 1989, the U.S. Army Court of Military Review set aside the findings of guilty of the additional Charge I and dismissed additional Charge I and its specifications in the applicant's first general court-martial.  The court affirmed the remaining findings of guilty and only so much of the sentence as provides for a dismissal.  One member of the court dissented, indicating he would only approve so much of the sentence as provides for a reprimand, forfeiture of $2,400.00 pay per month for one year, and a fine of $6,000.00.  It was the opinion of the dissenting judge that the convening authority and the majority in this case sentenced or approved the sentence based upon charges resulting in acquittal or charges that were withdrawn.  The petition of the accused to the U.S. Court of Military Appeals for a grant of review having been denied, the decision of the Court, the record of trial, and the recommendation of The Judge Advocate General were transmitted to the Under Secretary of the Army.

10.  The Under Secretary of the Army accepted the majority opinion of the U.S. Army Court of Military Review and approved and ordered executed the sentence of the applicant's first general court-martial as modified by the U.S. Army Court of Military Review on 7 January 1989.

11.  On 27 July 1989, the Chief of Staff of the U.S. Army indicated the applicant ceased to be an officer of the U.S. Army at midnight of 16 October 1989.

12.  On 16 October 1989, the applicant was dismissed from the service.  He had completed 22 years, 2 months, and 21 days of active service that was characterized as dishonorable.  He had 9 months and 4 days of time lost.

13.  On 25 January 1991, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence without modification of the applicant's second general court-martial.  The U.S. Court of Military Appeals denied the applicant's petition for grant of review on 10 June 1991.  The Assistant Secretary of the Army approved the sentence as affirmed by the U.S. Army Court of Military Review.  The Chief of Staff of the U.S. Army noted the applicant was dismissed from the U.S. Army effective 16 October 1989 pursuant to an earlier general court-martial.

14.  The Manual for Courts-Martial (MCM), United States, 1984 edition, shows that the maximum punishment for the violation of a lawful general regulation was a dishonorable discharge, forfeiture of all pay and allowances, and 2 years confinement.  The MCM shows that the maximum punishment for presenting a false claim was a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

15.  The MCM, 1984 edition, shows the maximum punishment for making a false sworn statement was a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

16.  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 ABCMR 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 contends his sentence was based on charges that he was acquitted of or charges that were withdrawn.  However, for the charges he was convicted of in his first general court-martial, in accordance with the MCM, the maximum punishment could have consisted of a dismissal, forfeiture of all pay 

and allowances, and a total of 7 years confinement.  For the charges he was convicted of in his second general court-martial, the maximum punishment consisted of a dismissal, forfeiture of all pay and allowances, and confinement for 3 years.  Therefore, his contention is without merit.

2.  It is apparent the court, in both courts-martial, considered the applicant's 
over 20 years of previous active duty in that neither court-martial sentenced the applicant to the maximum punishment he could have received which could have included forfeiture of all pay and allowances and up to 10 years confinement.

3.  The applicant abused his position of trust and responsibility by submitting false claims.  The applicant's misconduct had become common knowledge among the NATO representatives at the HAWK Management Office, thereby embarrassing the U.S. Army and his command.  An officer of his maturity and experience should have realized the seriousness of his misconduct.  The GCMCA stated the applicant so disgraced himself and compromised his standing and integrity as an officer that further productive service was no longer possible.

4.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offense for which he was charged.  Conviction and dismissal were effected in accordance with applicable law and regulations, and the dismissal appropriately characterizes the misconduct for which he was convicted.

5.  The applicant's contentions that his courts-martial were tainted by improper influences and racial bias are unsubstantiated.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 

6.  The applicant's entire record of service was considered.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request at this time.  

7.  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 that requirement.




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)                                         AR20090004264



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ABCMR Record of Proceedings (cont)                                         AR20090004264



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