IN THE CASE OF:
BOARD DATE: 20 March 2012
DOCKET NUMBER: AR20110016821
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, that his reduction to the pay grade of E-4 be set aside and that his records be corrected to show he was retired in the pay grade of E-7.
2. The applicant defers comments to his counsel.
3. The applicant provides a copy of his general court-martial orders, record of trial, and documents related to his trial by court-martial.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests that the applicant be retired in the pay grade of E-7 instead of his current retired grade of E-4.
2. Counsel states, in effect, the applicant was unjustly convicted by a general court-martial of engaging in a personal and social relationship with two trainees and dancing with one of them. He goes on to state that the trial was marred by unlawful command influence that prevented him from receiving a fair trial. He also states the evidence against the applicant was speculative at best; therefore, reduction to pay grade E-4 and the financial repercussions on his retirement were not proportional to the misconduct for which he was convicted. He further states that given the applicants service to his country during four combat deployments and the fact that this was his only offense in 20 years of service, the punishment was unjust.
3. Counsel provides no additional documents other than those provided by the applicant.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 18 September 1990 for a period of 2 years and 19 weeks. He completed one-station unit training as a construction equipment operator at Fort Leonard Wood, Missouri and he remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 1 January 2006.
2. On 1 October 2007, he was assigned to Fort Leonard Wood, Missouri for duty as the senior instructor and course chief for the general construction equipment operators course.
3. On 1 November 2007, he was issued a General Officer Memorandum of Reprimand (GOMOR) for driving while intoxicated (DWI).
4. On 28 August 2009, he was convicted by a general court-martial of two specifications of violating a lawful general regulation by wrongfully engaging in a personal and social relationship with female trainees. He was sentenced to a reduction to the pay grade of E-4, restriction for 30 days, and hard labor without confinement for 30 days.
5. On 28 September 2009, the applicant submitted his request for voluntary retirement to be effective 1 October 2010.
6. On 14 October 2010, the Office of the Judge Advocate General Criminal Law Division reviewed the findings and sentence of the court-martial and found them to be supported in law and the sentence appropriate.
7. Title 10, U.S. Code, provides, in pertinent part, that enlisted personnel may be advanced to the highest grade satisfactorily held, as determined by the Secretary of the Army, upon completion 30 years of service. This service may consist of combined active service and service in the U.S. Army Reserve Control Group (Retired).
8. 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 applicants contentions have been noted. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense. The applicant violated the trust placed in him as a noncommissioned officer and leader.
2. Trial by court-martial was warranted by the gravity of the offenses charged and his punishment was not disproportionate to the offenses for which he was convicted.
3. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to moderate the severity of the sentence imposed if clemency is determined to be appropriate. However, given the applicant's misconduct and insufficient mitigating factors, the punishment imposed appears to be appropriate. As a result, clemency is not warranted in this case.
4. However, the applicant is not precluded from being considered for advancement to the highest grade satisfactorily held, as determined by the Secretary of the Army, upon completion of 30 years of service (2020).
5. Accordingly, there appears to be no basis to grant the applicants request to set aside his reduction to the pay grade of E-4 or for retirement in the pay grade of E-4 at this time.
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) AR20110016821
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ABCMR Record of Proceedings (cont) AR20110016821
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