IN THE CASE OF:	  

		BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20110004021


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 restoration of his rank to staff sergeant (SSG)/
E-6.

2.  The applicant states:

	a.  He was reduced to SGT as a result of an improper summary court-martial (SCM).

	b.  He invoked his right not to make a statement to an investigating officer (IO) under Article 31 of the Uniform Code of Military Justice (UCMJ) and requested to speak to an attorney; however he was ordered to answer questions in a sworn statement that was later used against him as evidence in a SCM.

   c.  Although Captain (CPT) M______ (the IO) admits he made mistakes, consulted the brigade Judge Advocate for advice, destroyed some documents prepared during the initial investigation, and started the investigation over allowing individuals to invoke their right not to speak or provide a sworn statement. 
   
   d.  His command sergeant major (CSM) attempted to convince him to accept a field grade Article 15 instead of going through with a SCM.  The CMS stated he knew the applicant committed the acts; therefore, he inappropriately discussed the pending charges against him after he invoked his right not to speak.
   
   e.  He was initially denied the right to consult with counsel and later denied the right to call witnesses on his own behalf during the SCM process.
   
   f.  The SCM sentence should be set aside, his rank restored to SSG, and all back pay and allowances should be provided to him as a result of these corrections, as required by law and regulation.

3.  The applicant provides:

* Self authored statement
* Memorandum, dated 29 January 2010
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate)
* DA Form 2823 (Sworn Statement)
* Headquarters, Fort Drum Memorandum (undated)
* 9 pages of e-mail communications that includes a 2 page attachment
* DD Form 458 (Charge Sheet)
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ)
* Memorandum, Subject: SCM Proceedings, undated
* Memorandum, dated 10 January 2007
* DD Form 2319 (Record of Trial By SCM)
* 
CONSIDERATION OF EVIDENCE:

1.  The applicant's Official Military Personnel File (OMPF) shows he is currently serving on active duty as a Company Rear Detachment Noncommissioned Officer in Charge (NCOIC) for an 80 man air assault infantry company at Fort Campbell, Kentucky.  He holds the rank and grade of sergeant (SGT)/E-5.

2.  A DA Form 2823, dated 9 September 2006, includes a list of fifteen questions and answers asked of and provided by the applicant while he was assigned as the 1st Squad Leader, 1st Platoon, A Company, 1st Battalion, 32nd Infantry Regiment.  It is authenticated by the applicant and a witness.

3.  A DA Form 3881, dated 11 September 2006, shows the applicant was the subject of an investigation as a result of being suspected or accused of physical, and verbal abuse, and/or assault.  It includes the signatures of the IO and the applicant.


4.  A Memorandum for Record, dated 18 September 2006, shows a commander's inquiry found the accusation of physical assault and verbal abuse against the applicant was substantiated.  The recommendation was that the applicant be immediately relieved from his duties and that he not be allowed to be in charge of Soldiers again. 

5.  A DA Form 2627, dated 6 October 2006, shows the applicant's battalion commander considered whether he should receive non-judicial punishment (NJP) for maltreatment of another Soldier, making a false official statement, and assault.  It appears the applicant demanded trial by court-martial as was his right.

6.  On 17 November 2006, a DD Form 458 was prepared preferring court-martial charges against the applicant for violating the following Articles of the UCMJ:

   a.  Charge I (Article 91) - for being disrespectful towards a CSM during deportment on 12 November 2006.
   
   b.  Charge II (Article 93) - (two specifications):
   
* maltreatment of a subordinate Soldier by punching him in the chin with his fist between on or about 28 August and 15 September 2006
* maltreatment of a subordinate Soldier by threatening to hit and beat him within one inch of his life the next time between on or about 
28 August and 15 September 2006

   c.  Charge III (Article 134) - wrongfully advising a subordinate Soldier to commit an offense under Article 128 - assault consummated by battery by telling him "it's okay to hit Soldiers…." between on or about 28 August and 15 September 2006.

7.  On 16 January 2007, a SCM found the applicant guilty of violating Article 93 and Article 134 of the UCMJ.  In addition, the SCM granted the motion to dismiss Charge 1 (Article 91) and found him not guilty of violating one specification of Article 93.  The resultant sentence was reduction to SGT and a forfeiture of $1291.00 pay for 1 month.

8.  On 23 January 2007, the applicant appealed the SCM punishment.  On 2 February 2007, the Chief, Administrative Law conducted a legal review of the record of trial and concluded:

* the court martial had jurisdiction over the accused and each offense of which he was found guilty
* each specification of which the accused was found guilty stated the offense
* the sentence was legal

9.  On 6 November 2008, the applicant appealed his SCM conviction.  On 
15 April 2009, the Criminal Law Division, acting on behalf of The Judge Advocate General (JAG) of the Army denied the appeal and affirmed the findings of guilty and the sentence.

10.  On 29 January 2010, the applicant, through counsel, submitted a complaint regarding his Article 69 Appeal to the JAG, Criminal Law Division, Rosslyn, Virginia.  There is no evidence of a response to this complaint.

11.  The applicant provides an e-mail, dated 5 February 2009, authored by the IO of the commander's inquiry.  The IO admits:

	a.  he did not initially read the applicant his rights during his investigation because it was his understanding he was investigating a Soldier who felt he was not being allowed to call home as much as he desired;

	b.  after he began the investigation, he realized the seriousness of the incident and called his local staff judge advocate (SJA) for guidance; 

	c.  he was instructed to re-interview all subjects and to read them their rights first, ask the same questions, add additional questions, and obtain new sworn statements, all of which he did; and

   d.  he was advised to personally guard the initial sworn statements and hand them over to the SJA's office, because they would be inadmissible in the final packet, and most likely destroyed, unless the judge called them into question.

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.  It is not a determination concerning the legality of the sentence, but rather an action to reduce the sentence as a matter of fairness or equity.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his rank should be restored to SSG with all back pay and allowances due as a result of an improper SCM.  Pursuant to Title 10, USC 1552, the ABCMR may not set aside the findings of guilt due to a SCM.  The applicant's claim concerning violations of his rights during the IO's investigation and the court-martial process are matters that should have been raised or may have been raised during the appeals process.  There is nothing in his record and the applicant provided nothing to support his claim that his rights were violated.

2.  His counsel's motion to dismiss Charge I (being disrespectful towards the CSM during deportment) was granted by SCM.  There is no evidence available that indicates anything the applicant said was used against him or that it had any bearing on the SCM sentence resulting in his reduction in rank.

3.  The evidence of record shows a SCM found the applicant guilty of violating Article 93 and Article 134 of the UCMJ.  Accordingly, he was sentenced to reduction to SGT and a forfeiture of pay.  The SCM sentence was determined to have been legally sufficient and confirmed.  There is no apparent error or injustice associated with the SCM or the resulting sentence.

4.  The evidence the applicant provided was not sufficient to warrant restoration of his rank to SSG as a matter of equity.  The reduction to SGT was an appropriate sentence for the offenses he was found guilty of committing.

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)                                         AR20110004021



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ABCMR Record of Proceedings (cont)                                         AR20110004021



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