IN THE CASE OF:	

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090012370 


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, correction of his military record to right an injustice in the form of his reinstatement, promotion with his peers, removal of the dishonorable discharge, and any further relief the Board feels may be appropriate.  In the alternative, the applicant requests that his dishonorable discharge be upgraded to honorable as a matter of clemency.

2.  The applicant states, in effect, he understands the Board cannot change the court-martial, even though it was illegal, but the Board can right an injustice and grant his request without touching the court-martial.  He also states that on 13 November 2001 he was convicted of four specifications in violation of the Uniform Code of Military Justice, one of which carried a maximum sentence of life.  He was subject to the 1998 version of the Manual for Courts-Martial (MCM) because that is the one that was in effect at the time of the alleged offense.  Though the MCM set the maximum possible punishment at life, he was threatened with Life Without the Possibility of Parole (LWOP) to force him into taking a pretrial agreement.  LWOP was considered lawful by the trial judge because it had been signed by Congress and the President in November 2001, even though its Article (56a) was not added to the MCM by the President until 2002.  The US Army Court of Criminal Appeals affirmed his case on 27 July 2004 without an explanation.  The US Court of Appeals for the Armed Forces affirmed his case with a dissertation on why Article 56a was valid, even though it was not in the MCM at the of the alleged offense, nor at the time of court-martial, on 31 May 2006.  They did this in direct conflict with the MCM itself.  When the Supreme Court denied Certiorari (2 Feb 08), his direct appeals ended.

3.  The applicant further states that at the time of his trial, he was coerced and threatened with LWOP in order to get him to take a plea deal, for an offense that he had not committed, in order to bar being exposed to LWOP.  In the military, the difference between Life and LWOP is significant.  With “Life,” one is eligible for parole in twenty years, with “LWOP,” one is sentenced to die in prison.  This fear of dying in prison played a very big part in his decision to plead guilty to a crime that he is not guilty of.  At the time of his trial (Nov 01) and the alleged offense (May 98), the MCM reflected a maximum punishment of life for the offenses that he was charged with.  He was illegally threatened with LWOP and coerced into taking a plea bargain for a lesser sentence for an offense that he was not guilty of.  This coercion was done pursuant to Article 56a which was not put into the MCM until 11 April 2002, months after his trial and years after the alleged offense.  It is one of the basic premises of law that one is tried using the laws as they stand at the time of the alleged offense, not how they stand at the time of trial and Article 56a was not even in the MCM at the time of his trial.  Clearly, the MCM states that the MCM, and only the MCM, rules every step in the court-martial process, thus, the use of LWOP is his trial was illegal and an unconstitutional injustice that must be righted by this Board.  

4.  The applicant also states, in conclusion, that this Board exercise its statutory jurisdiction and power and reinstate him, promote him with his peers, and remove all traces of the dishonorable discharge that resulted from his illegal court-martial, and grant any further relief it finds appropriate.  In the alternative, he requests that this Board upgrade his dishonorable discharge to an honorable discharge, as an act of clemency.  

5.  In support of his application, the applicant provides copies of his US Court of Appeals for the Armed Forces case; Appendix B, pages 1 & 2, of the MCM; and United States Code, Title 10, section 1553.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he reenlisted in the Regular Army (RA) in pay grade E-4 on 27 May 1997, with 3 years with prior service.  He served in military occupational specialty 68W, Health Care Specialist.  He reenlisted in the RA in pay grade E-5 on 4 May 1999, for 3 years.   

2.  On 13 November 2001, the applicant was convicted pursuant to his pleas by a general court-martial of one specification of committing forcible sodomy with a child under the age of 12 years, between on or about 1 January 1998 and on or about 31 December 2000; one specification of committing indecent acts with a child between on or about 1 January 1997 and on or about 3 November 1999, one specification of committing indecent acts with a child between on or about 8 September 1998 and on or about 1 March 1999; and one specification of committing indecent acts between on or about 8 September 1998 and on or about 1 March 1999.  The military judge granted the government’s motion to dismiss the specification of committing sodomy with a child under the age of 12 years between on or about 8 September 1998 and on or about 1 March 1999, after arraignment, but prior to entry of the pleas.  The applicant was sentenced to be reduced to pay grade E-1, to forfeit all pay and allowances, 16 years confinement, and to be dishonorably discharged.  The military judge recommended that if the applicant requested deferment and waiver of forfeitures, it should be approved and sent to his dependents for the maximum period authorized.  The sentence was adjudged on 13 November 2001.  Pursuant to a pretrial agreement concerning sentence, the convening authority agreed to disapprove any sentence for confinement in excess of 15 years.  

3.  Orders 318-156, dated 14 November 2001, were published by Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, assigning the applicant to the US Disciplinary Barracks, Fort Leavenworth, Kansas, on or about 19 November 2001.  

4.  On 3 May 2002, the convening authority approved only so much of the applicant’s sentence as provided for a dishonorable discharge, confinement for 15 years, and reduction to pay grade E-1, and ordered with the exception of the dishonorable discharge, it be duly executed.  The automatic forfeiture was deferred and a waiver of the automatic forfeiture was granted on 20 November 2001 until 20 May 2002 with the understanding the monies be directed to the spouse and custodian of the applicant’s children.

5.  On 27 July 2004, the US Army Court of Criminal Appeals, approved the findings of guilty and found the sentence correct in law and fact and affirmed the sentence.

6.  On 19 September 2004, the applicant submitted a petition to the US Court of Appeals for the Armed Forces for a review of his conviction.

7.  On 29 September 2004, the US Army Court of Appeals for the Armed Forces granted the applicant a review of the decision of the US Army Court of Criminal Appeals.

8.  On 31 May 2006, the US Army Court of Appeals for the Armed Forces affirmed the decision of the US Army Court of Criminal Appeals.  

9.  General Court-Martial Order Number 28, dated 13 October 2006, published by the US Army Combined Arms Center and Fort Leavenworth, US Disciplinary Barracks, ordered the applicant’s dishonorable discharge duly executed.

10.  The applicant was discharged on 5 February 2008, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 3, As A Result of Court-Martial.  His character of service was characterized as dishonorable.  He was charged with lost time from 13 November 2001 to 5 February 2008 due to confinement.  

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provided that a Soldier would be given a dishonorable discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it could be duly executed.

12.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

13.  The applicant submitted a copy of his US Court of Appeals for the Armed Forces case.  The court held that the LWOP was an authorized punishment for the applicant’s offense of forcible sodomy of a child under age 12 years, which occurred after 18 November 1997.  The court concluded that the pre-trial agreement was both proper and lawful and the applicant’s guilty plea was provident.  In their view, the applicant was not misled as to the maximum permissible punishment of LWOP.

14.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge as a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization.

15.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States 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.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The evidence of record shows that the applicant was convicted pursuant to his guilty pleas by a general court-martial adjudged on 13 November 2001.   He was sentenced to confinement of 15 years and a dishonorable discharge.  He was discharged on 5 February 2008 pursuant to the sentence of a general court-martial and was issued a dishonorable discharge.  

4.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offenses.  There is no error or injustice in his record.  He has provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations, with due process.  The applicant has submitted no evidence other than his assertions that he was coerced into taking a plea bargain for a lesser sentence for an offense that he was not guilty of and that his trial was illegal and unconstitutional.  

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his dishonorable discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

6.  The applicant's available military records and documentation submitted with his application and his records contain no matters upon which the Board may grant clemency and an upgrade of his dishonorable discharge to an honorable discharge or reinstatement into the Army with promotion to the next higher grade. On appeal, the US Court of Criminal Appeals upheld and affirmed the applicant’s findings of guilty and his sentence on 31 May 2006.  The Supreme Court denied the applicant’s petition for Writ of Certiorari on 20 February 2007.  In view of the foregoing, there is no basis for granting the applicant's requests.
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)                                         AR20090012370





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ABCMR Record of Proceedings (cont)                                         AR20090012370



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