IN THE CASE OF:	

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090012368 


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, removal of all traces of his "invalid" court-martial from his record.

   a.  He also requests correction of his discharge document to show the position title and language that is shown on his Enlisted Record Brief, service in Haiti from 16 January to 7 April 1995, and correction of the mailing address after separation and nearest relative shown on the document.

   b.  He further requests upgrade of the character of service of his discharge from a dishonorable discharge to an honorable discharge.

2.  The applicant states he was tried on 13 March, 5-6 May, and 12-16 May 2003 by a general court-martial.  He pled not guilty to all charges and specifications but was found guilty of the charges and specifications.  He was sentenced to life with the possibility of parole, forfeiture of all pay and allowances, reduction to private (E-1), and a dishonorable discharge.

	a.  He states that on 13 March 2004, the U.S. Army Court of Criminal Appeals summarily affirmed the findings and sentence and, on 1 April 2008, the Court of Appeals of the Armed Forces granted a review and affirmed the lower court's decision.  He adds that he submitted a packet to the United States Supreme Court, which was denied.

   b.  The applicant states he was arrested on 19 May 2000 by the Cumberland County Sheriff, Fayetteville, North Carolina, and charged with murder.  Two months later he was charged with robbery with a dangerous weapon.  He adds that his brother was subsequently arrested and charged with the same charges.

   c.  He states that on several occasions the Cumberland County Sheriff attempted to get the U.S. Army to take his case, but his case was refused.  He was released on bond on 11 March 2002 pending trial and was ordered by the court to return to Fort Benning, Georgia.  He adds that in the presence of his sister, his chain-of-command informed him they were not going to pursue charges against him.

   d.  He states his State trial began on 13 May 2002 and, after a period of nine days, he was acquitted of all charges.

   e.  The applicant lists eight questions that he states were never answered that relate to the processing of his case by the U.S. Government.  He also provides six pages of "statements of facts" and "supporting facts" offered as reasons his case should be reopened and reviewed.

   f.  He states he was assured by his company and battalion commanders that charges would not be preferred against him.  He also states he took what was said to him as the government granting him immunity from being court-martialed and a waiver of jurisdiction by the U.S. Government.  He adds that his request for discharge was dropped after he was acquitted by the State.

	g.  He states that his court-martial constitutes double jeopardy and he cites case law in support of his argument.  He also states that the government did not complete a thorough and impartial investigation of all matters.

   h.  The applicant concludes that his court-martial violated due process, was unconstitutional and, therefore, his dishonorable discharge should be changed to an honorable discharge.

3.  The applicant provides a 12-page self-authored document identified as "Attachment to DD Form 293" [Application for the Review of Discharge from the Armed Forces of the United States] with Appendices A through F, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted and entered active duty in the Regular Army on
28 January 1986.  Upon completion of training he was awarded military occupational specialty (MOS) 11B (Infantryman).
2.  Headquarters, Charlie Detachment,  22nd Personnel Services Battalion, Fort Lewis, Washington, Orders 126-13, dated 6 May 1998, show the applicant was promoted to staff sergeant (SSG)/pay grade E-6 in MOS 11B3OC2OO effective
1 May 1998.

3.  Headquarters, U.S. Army Infantry Center and Fort Benning, Fort Benning, Georgia, General Court-Martial Order Number 3, dated 6 February 2004, and  DA Form 4430 (Department of the Army Report of Result of Trial) show the applicant was arraigned and tried by a general court-martial.

   a.  The applicant pled not guilty to the charges and specifications of:

	    (1)  at Fayetteville, North Carolina, on or about 13 April 2000, with premeditation, murder Mr. A. A. by means of shooting him in the back of the head with a handgun;

       (2)  at various locations, in divers occasions between on or about July 1998, and on or about 13 April 2000, commit sodomy with Mrs. A. A.; and

       (3)  at various locations, on divers occasions between on or about July 1998, and on or about 13 April 2000, wrongfully have sexual intercourse with Mrs. A. A., a married woman, not his wife.

   b.  The applicant was found guilty of all charges and specifications.  He was sentenced to be reduced to the grade of private (E-1), to forfeit all pay and allowances, to be confined for life with the possibility of parole, and to be discharged from the service with a dishonorable discharge.  The sentence was adjudged on 16 May 2003.

   c.  On 6 February 2004, the convening authority approved the sentence and ordered it be executed, except for that part of the sentence extending to a dishonorable discharge.  The applicant was credited with 663 days of confinement credit against the sentence to confinement.

4.  On 11 January 2006, the applicant's defense counsel filed a brief with the U.S. Army Court of Criminal Appeals, identifying assignments of error in the applicant's case (e.g., double jeopardy, speedy trial, factual and legal sufficiency).

5.  On 1 April 2008, the United States Court of Appeals for the Armed Forces, Washington, District of Columbia, affirmed the decision of the United States Army Court of Criminal Appeals.

6.  A petition for a writ of certiorari was filed in the Supreme Court of the United States on 19 May 2008 and placed on the docket 27 May 2008.  On 23 June 2008, the applicant's petition for a writ of certiorari was denied.

7.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, General Court-Martial Order Number 166, dated 24 July 2008,
shows the applicant's sentence to reduction to the grade of private (E-1), forfeiture of all pay and  allowances, confinement for life with the possibility of parole, and a dishonorable discharge was finally affirmed.  The applicant was credited with 663 days of confinement against the sentence to confinement.  The provisions of Article 71(c) having been complied with, the dishonorable discharge was ordered to be executed.

8.  A DD Form 214 shows the applicant was dishonorably discharged on
20 January 2009 in accordance with Army Regulation 635-200, chapter 3, with a narrative reason of "Court-Martial, Other."  At the time of his discharge the applicant had completed 17 years, 3 months, and 18 days of net active service and 1 month and 15 days on total prior inactive service.  Additionally:

	a.  item 4a (Grade, Rate or Rank) shows the entry "PV1" and Item 4b (Pay Grade) shows the entry "E01";

	b.  item 11 (Primary Specialty) shows the entry "11B1O INFANTRYMAN -
22 YRS 8 MOS//NOTHING FOLLOWS";

	c.  item 18 (Remarks) shows, in pertinent part, the entry "SERVICE IN EGYPT 19960710-19970620//SERVICE IN SOMAILIA [sic] 19920228-19920827";

   d.  item 19a (Mailing Address After Separation) shows the entry
"###3 WASHINGTON AVE 9E, BRONX NEW YORK  10456";

   e.  item 19b (Nearest Relative) shows the entry "J______ T______,
###3 WASHINGTON AVE 9E, BRONX NEW YORK  10456" and

   f.  item 29 (Dates of Time Lost During This Period of Service) shows he had time lost under Title 10, U.S. Code, section 972, from 16 May 2003 to 20 January 2009.

9.  On 14 February 2009, the Criminal Law Division, Office of The Judge Advocate General, Rosslyn, Virginia, notified the applicant that his request for relief from his general court-martial was reviewed.  The applicant was advised that such relief could only be considered under Article 73, Uniform Code of Military Justice (UCMJ), and it was determined that his request was submitted substantially beyond the statute of limitations.  Therefore, there was no jurisdiction to consider his request.

	a.  It was noted that review of the applicant's case by the U.S. Army Court of Criminal Appeals was completed on 19 June 2007, that his case was affirmed by the United States Court of Appeals for the Armed Forces on 1 April 2008, and that his petition for writ of certiorari to the Supreme Court of the United States was denied on 23 June 2008.  Therefore, there is no further appellate review available to the applicant within the UCMJ system.

	b.  The applicant was also informed that he may be able to obtain relief from the Army Review Boards Agency, Army Board for Correction of Military Records (ABCMR).

10.  In support of his application, the applicant provides the following documents.

     a.  Appendix A that includes an email from Major S. Scot S____, Defense Counsel, U.S. Army Trial Defense Service, 3rd Infantry Division (Mechanized) Field Office, dated 1 May 2003, subject:  Memorandum For Record; pages 40 through 48 of a trial transcript; and three memoranda pertaining to the applicant's separation.  These documents show, in pertinent part, that the Staff Judge Advocate (SJA) indicated he was not interested in pursuing charges at that time, but would call if the SJA had other thoughts"; this was confirmed by the applicant's company commander in his testimony; and the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, with an under other than honorable conditions discharge.

	b.  Appendix B that includes a State of North Carolina, Cumberland County, Request and Reports Convictions/Expunctions Dismissals and Discharge, File Number 00 CRS 59039, dated 22 August 2002.  This document shows the applicant's defense attorney made a motion for dismissal of the offenses of breaking and entering, murder, kidnapping, and robbery with a deadly weapon due to lack of sufficient evidence, and the court allowed the motion for dismissal.

   c.  Appendix C that includes copies of two court cases:  U.S. v. Wagner,      35 MJ 721 (A.F.C.M.R., 1992) and Santobello v. New York, 440 U.S. 257 (1971).

   d.  Appendix D that includes an extract from Title 10, U.S. Code, Chapter 47 (Uniform Code of Military Justice), section 171 (Jurisdiction of civil courts).

   e.  Appendix E that includes copies of two court cases:  Blockburger v. U.S.,  284 U.S. 299 (1932) and U.S. v. Scholz, 899 F. Supp. 484 (D. Nev, 1995).

   f.  Appendix F that includes a copy of 762 Federal Supplement 666, United States District Court for the Western District of Virginia, Big Stone Gap Division, U.S. v. Belcher, 762 F. Supp. 666 (W.D. VA, 1991).

11.  In connection with the processing of this case, the Army Military Pay Operations - Indianapolis, Defense Finance and Accounting Service (DFAS), Indianapolis, IN, was asked to verify the period of service the applicant was authorized hostile fire pay/imminent danger pay (HFP/IDP).  DFAS responded that the applicant received HFP/IDP for service in Haiti from 16 January through 7 April 1995.

12.  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.

13.  Army Regulation 611-1 (Military Occupational Classification Structure Development and Implementation) prescribes the method of developing, changing, and controlling the officer, warrant officer, and enlisted military occupational classification structures.

	a.  Chapter 6 (The Enlisted Classification System), paragraph 6-6 (Military occupational specialty code (MOSC)), states that the MOSC contains nine characters and provides more specific occupational identity than the MOS.

	b.  The first three characters (an alpha-numeric combination) identify the MOS without regard to level of skill.  The fourth character is a number and shows skill and grade level (i.e., 1- 5) in the MOS.  The fifth character may be a letter or a number that reflects the Special Qualification Identifier (SQI) common to an MOS; the letter "O" represents no special qualifications and the letter "L" represents "linguist" (i.e., qualification in a foreign language).  The sixth and seventh characters may be alpha-numeric or numeric-alpha that represent Additional Skill Identifiers (ASI) closely associated with the MOS; the numbers "00" represent no ASI.  The eighth and ninth characters are a two-letter combination that identifies a foreign language in which the member is qualified; the letters "OO" indicate a Soldier is not foreign language qualified.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) prescribes policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 3 (Character of Service/Description of Separation) states that Title 10, U.S. Code, section 1168, provides that a discharge certificate or certificate of release from active duty will be given to each Soldier of the Army upon discharge from the Service or release from active duty.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-10 states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

15.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  

   a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, the source documents for entering information on the
DD Form 214 will be the Enlisted/Officer Record Brief (ERB/ORB), separation approval authority documentation, separation orders, or any other document authorized for filing in the Official Military Personnel File.

   b.  Paragraph 2-4 (Completing the DD Form 214) contains item-by-item instructions for completing the DD Form 214.

       (1)  Item 4 states enter the active duty grade or rank and pay grade at time of separation from the ERB.

       (2)  Item 11 states that from the ERB/ORB, enter the titles of all MOSs or AOCs (Areas of Concentration) served for at least 1 year and include for each MOS/AOC the number of years and months served.  For time determination,
16 days or more count as a month.  Do not count basic training and advanced individual training.
       (3)  Item 18 states to use this block for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks.  It also states, in pertinent part, for an active duty Soldier deployed with his or her unit during their continuous period of active service, enter the statement, "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)."

	    (4)  Item 19 states to enter the mailing address and county of residence furnished by the individual at time of separation.  The county may be omitted if not listed in Appendix A.  Do not list civilian penal institutions as a mailing address after separation.

16.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  This document states that only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or no longer used documents) are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.

17.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 

18.  Chapter 7 of Army Regulation 600-37 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. Paragraph 7-2 of this regulation states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

19.  Army Regulation 15-130 (Army Clemency and Parole Board) establishes the primary procedures for the exercise of the Secretary of the Army's clemency authority.  The Army Clemency and Parole Board exercises clemency authority for the Secretary of the Army, so long as the former Soldier is serving his or her sentence.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records), the regulation under which this Board operates, states, in pertinent part, the Board will not consider any application if it determines the applicant has not exhausted all other administrative remedies.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the position title, duty language, mailing address after separation, and nearest relative shown on his DD Form 214 should be corrected, and that his service in Haiti should be added to the document.

   a.  He also contends that all traces of his court-martial should be removed from his record.

   b.  He further contends that, if all traces of the record of court-martial are not removed from his record, the character of service of his discharge should be upgraded to an honorable discharge.

2.  Records show the applicant was promoted to SSG in MOSC 11B3OC2OO. Thus, the fifth character ("O") and eighth and ninth characters ("OO") fail to show the applicant possessed any foreign language qualification.

   a.  Records show the applicant was reduced from SSG (E-6) to private (E-1) and that this rank and grade appear on his DD Form 214.

   b.  Records show that, commensurate with the applicant's reduction to E-1, his primary specialty (i.e., MOSC) was also changed showing skill level 1, the corresponding MOS title, and the length of time he held the MOS (i.e., 11B1O, Infantryman, 22 years, 8 months).

   c.  There is no evidence of record that shows the applicant possessed any foreign language qualification.  Thus, the applicant is not entitled to correction of his MOSC in this instance.

   d.  In view of the foregoing, the applicant is not entitled to correction of the MOS information in item 11 of his DD Form 214.

3.  The evidence of record shows the applicant served overseas in Haiti from
16 January through 7 April 1995.  Therefore, it would be appropriate to correct item 18 of the applicant's DD Form 214 to show this foreign service.


4.  The applicant provides insufficient evidence to show that the mailing address after separation and nearest relative entered in items 19a and 19b were not valid at the time of his separation.  Thus, these items are presumed correct and the applicant is not entitled to correction of items 19a and 19b of his DD Form 214.

5.  The evidence of record confirms the applicant's trial by general court-martial was warranted by the gravity of the offenses for which he was charged.  In addition, conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

6.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  However, the Board does not exercise its authority until other remedies are exhausted.  As the Army Clemency and Parole Board still has clemency authority for the applicant, that issue is not ripe for this Board's consideration.

7.  The applicant's contention that his court-martial violated his rights due to the numerous issues he raised was addressed and litigated through the court-martial and appellate process.  Thus, they furnish no basis for removal of the court-martial from his records.

8.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust. The applicant failed to submit evidence that the documents relating to his
court-martial are untrue or unjust.  Therefore, there is no basis for removing the documents relating to the applicant's court-martial from his military records.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:
1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item 18 of his DD Form 214 the entry "SERVICE IN HAITI FROM 19950116-19950407//NOTHING FOLLOWS."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of all traces of the court-martial from the applicant's record; upgrade of his discharge; and changes to his primary specialty, mailing address after separation, and nearest relative shown on his DD Form 214.



      _______ _   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)                                         AR20090012368



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ABCMR Record of Proceedings (cont)                                         AR20090012368



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