IN THE CASE OF:	  

		BOARD DATE:	  7 February 2012

		DOCKET NUMBER:  AR20110021629 


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 Special Court-Martial (SPCM) conviction be set aside, the record be expunged, and that he be restored to active duty with all rights and privileges.

2.  The applicant states the Government introduced questionable evidence at trial which prejudiced the court against him.

3.  The applicant provides:

* a 3-page letter to his Representative in Congress
* a 4-page summary of events
* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* an 8 May 1991 Allegation of Errors prepared by his defense counsel under Rules for Courts-Martial (R.C.M.) 1105
* a 24 August 1995 letter from the District Court Clerk, Comanche County, Lawton, OK
* a 13 May 1991 memorandum to the court-martial appellate authority
* a 16 August 1991 request for compassionate reassignment
* a 24 July 1991 Statement of Recognition of Deceased (son)
* a 21 September 1992 letter of recommendation
* miscellaneous documents from his Official Military Personnel File, including:  awards, evaluation reports, personnel actions, etc.


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was a career Regular Army Soldier.  His highest grade was staff sergeant (SSG)/E-6.

3.  Special Court-Martial Order Number 7, Headquarters, United States Army South, dated 15 July 1991, shows the applicant was arraigned on the following charges:

* Charge  Article 134.  Plea:  Not Guilty  Finding:  Guilty

* Specification 1:  Between 15 March and 15 June 1990, the applicant, a married man, did wrongfully have sexual intercourse with a woman not his wife.  Plea:  Not Guilty  Finding:  Guilty
* Specification 2:  Between 23 August and 27 August 1990, the applicant, a married man, did wrongfully have sexual intercourse with a woman not his wife.  Plea:  Not Guilty  Finding:  Guilty
* Specification 1:  On or about 28 August 1990, the applicant did wrongfully and bigamously marry S.A., having at the time of said marriage to S.A. a lawful wife then living, to wit: E.N.M.M.G.  Plea:  Not Guilty  Finding:  Guilty

4.  The sentence was adjudged on 8 May 1991.  The applicant was reduced from SSG to specialist four (SP4)/E-4.

5.  Upon conclusion of the trial, applicant's defense counsel submitted an allegation of errors under R.M.C. 1105 stating:

* the applicant's co-actor stated under oath that she did not have sexual intercourse with the applicant
* the very existence of a second marriage was in doubt
* the Oklahoma Marriage License offered by trial counsel in support of the bigamy charge was of questionable legitimacy
* Ms. S.A. contradicted herself on the stand by saying she was married to the applicant, yet claims to have gotten an annulment

6.  Having considered the matters submitted by the applicant – request for clemency and allegations of errors – the convening authority approved the sentence and ordered it executed.  The applicant was reduced to SP4.

7.  On 27 August 1992, the applicant was honorably discharged under the qualitative retention program and awarded separation pay in the amount of $14,107.92.

8.  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 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 was charged with adultery and bigamy.  He was tried by a SPCM where he was represented by qualified legal counsel.  Contrary to his pleas of not guilty, he was found guilty and reduced from SSG to SP4.

2.  The applicant's legal counsel raised allegations of errors at trial in an R.C.M. 1105 submission to the court-martial convening authority, along with a clemency request.  All matters were considered and rejected.

3.  The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by a court-martial.  While the Board cannot, by law, disturb the finality of a court-martial conviction, it can mitigate the punishment when deemed appropriate.  In this situation, the applicant has offered no valid reasons for mitigation.


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)                                         AR20110021629



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110021629



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1