BOARD DATE:	  9 June 2011

		DOCKET NUMBER:  AR20100025242 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the applicant's reduction as a result of his summary court-martial conviction be set aside and that his rank be restored to sergeant first class (SFC)/E-7.

2.  Counsel states:

* His sentence was unduly harsh given his 21 years of service
* He served honorably for more than 21 years with many accolades and accomplishments

3.  Counsel states the applicant served as a recruiter from October 1997 to October 2007.  In October 2007, he was assigned to Fort Bragg, NC as the operations noncommissioned officer (NCO) of a cargo parachute maintenance facility.  He had not served in his military occupational specialty for over a decade when he deployed to Iraq in May 2009.  Prior to that deployment, his last combat deployment was as a private first class (PFC)/E-3 in 1991.  After 10 years in recruiting he was tasked as the S-4 NCO in charge and logistics advisor for an Iraqi National Police Transition team.  As part of his duties, he visited the Iraqi National Police headquarters (less than 100 yards from Forward Operating Base (FOB) Justice with an interpreter on a near daily basis.  They usually walked.  He 


was never counseled or told there existed a Multinational Division - Baghdad order setting guidelines for travel by vehicle to and from installations.  The first time he was counseled was on 27 December 2010, 7 months into his deployment and after the incident in question.

4.  On the day in question the applicant was visiting the Iraqi National Police.  The Iraqi National Army had abandoned a nearby fuel point that would be useful for the police.  He travelled by vehicle with the Iraqi National Police to the Iraqi National Army headquarters.  Rather than transit through FOB Justice, the Iraqi National Police chose to drive around the installation to the other side where the Iraqi National Army was located.  The total trip was less than 2 miles but never more than 25 yards from the wall surrounding FOB Justice.  This was a route that was travelled daily, was well-secured, and cleared of improvised explosive devices.  Moreover, 24 December 2009 was a religious holiday and the security along the route was heavy.  This was hardly high-risk travel.

5.  On 4 February 2010, the applicant requested clemency.  On 19 April 2010, he again petitioned the convening authority to reconsider the imposed punishment.  His requests were denied on both occasions.  He received two strong recommendations from Iraqi military leaders thanking him for his efforts.

6.  Counsel further states the sentence in this case was unreasonably harsh and a reduction in rank to staff sergeant (SSG)/E-6 was not appropriate.  The cost in retirement benefits will be enormous.  The reduction in pay has and will continue to place a financial strain on his family.  He is a hard-working Soldier as evidenced by his more than 21 years of honorable service.  He was a successful recruiter for the Army from 1997 through "2005."  His dedication to the Army is also evident through the numerous letters of reference included.  A master sergeant depicted the applicant as an exemplary Soldier who would always take the hard job no one else would volunteer for and he believes the applicant is and will continue to be a great asset to the Army.  An SFC described the applicant as a "Poster Trooper."  The applicant's love for the Army and his job drove him to constantly strive to be a better Soldier.

7.  Counsel states when confronted about traveling outside the approved area the applicant readily admitted to his actions and owned up to his mistake.  This was the kind of case that would have been appropriately handled by counseling or even a reprimand.  A summary court-martial with a reduction in rank, however, was excessive.

8.  Counsel provides 12 enclosures outlined on page 9 of his supplemental statement.


CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the Regular Army (RA), he enlisted in the RA on 7 October 1992 and has remained on active duty through continuous reenlistments.  He was promoted to SFC on 1 February 2004.

2.  A DD Form 2329 (Record of Trial by Summary Court-Martial) shows on 
31 January 2010, in accordance with his pleas, the applicant was convicted by a summary court-martial of failing to obey two lawful general orders in Iraq (wrongfully traveling outside FOB Justice without being in the appropriate Force Protection Program and wrongfully failing to adhere to the minimum combat operating and manning standards when traveling outside FOB Justice); and obstructing justice (endeavor to influence the actions of "Joey" not to tell anyone that they had wrongfully left the FOB).  He was sentenced to reduction to  SSG/E-6, forfeiture of $2,357.00 pay per month for 1 month, and an oral reprimand.  On 5 February 2010, the convening authority approved the sentence.  He was not represented by counsel.

3.  In the processing of this case, on 1 March 2011, an advisory opinion was obtained from the Chief, Enlisted Promotions Branch, U.S. Army Human Resources Command, Fort Knox, KY.  The advisory official recommends that full administrative relief not be granted.  The advisory official states:

* On 31 January 2010 the applicant pled guilty and he was found guilty by a summary court-martial
* Results of this action were reduction to SSG, forfeiture of pay, and an oral reprimand
* On 5 February 2010 the convening authority approved the sentence

4.  On 29 March 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

5.  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 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's prior good service and counsel's contentions have been carefully considered.  However, the serious offenses (which included obstructing justice), committed by a senior noncommissioned officer, could have warranted a more severe punishment.  It appears that it may have been the obstruction of justice offense that led to the court-martial action rather than a lesser, nonjudicial punishment.  The punishment of a reduction from SFC to SSG for the offenses charged does not appear to be unduly harsh.

2.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board may moderate the severity of the sentence imposed if clemency is warranted.  However, in light of the obstruction of justice charge, the imposed sentence was not too harsh.  As a result, clemency is not warranted in this case.

3.  Based on the foregoing, there is insufficient evidence in which to grant the applicant's requested 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.



      _________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)                                         AR20100025242



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ABCMR Record of Proceedings (cont)                                         AR20100025242



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