IN THE CASE OF:
BOARD DATE: 29 November 2012
DOCKET NUMBER: AR20120006870
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, to be placed on the Retired List in the rank/grade of command sergeant major (CSM)/E-9.
2. The applicant states:
* he served over 10 years as a CSM/E-9 and 33 years of honorable service to this nation
* the court-martial reduced him to specialist (SPC)/E-4
* the allegations were over 5 years old and should never have gone to a court-martial
* the initial charge was rape and when they couldn't get him on rape, additional charges were added
* he met the retirement time as a CSM/E-9 and should be placed on the Retired List as an E-9
* he submitted his retirement request on 1 June 2011 and received retirement orders as an E-9, but several weeks later he was given a second set of retirement orders as an SPC/E-4
3. The applicant provides:
* retirement orders in the grade of CSM/E-9, dated 27 June 2011
* revocation orders, dated 7 July 2011
* retirement orders in the grade of SPC/E-4, dated 7 July 2011
* Unit/Installation Clearance Record
* DA Form 31 (Request and Authority for Leave)
* Enlisted Record Brief
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 7 June 1978 and remained on active duty through continuous reenlistments. He was promoted to CSM/E-9 effective 1 July 2000.
2. Records show he was convicted by a general court-martial on 5 May 2011 of adultery, violating a lawful general regulation by engaging in a prohibited relationship with a private first class (PFC), maltreatment of a PFC by threatening to send her back to the battery when she refused to engage in sexual intercourse, and by using his position as CSM to compel her to engage in sexual intercourse with him. He was sentenced to be reduced to the rank of SPC/E-4 and to forfeit $1,162.95 pay per month for 6 months.
3. Retirement orders, dated 27 June 2011, show he would be retired in the grade of CSM effective 31 October 2011.
4. On 29 July 2011, the convening authority approved the general court-martial sentence.
5. Records show his initial retirement orders in the grade of CSM, dated 27 June 2011, were revoked.
6. On 31 October 2011, he retired after completing over 33 years of creditable active service and he was placed on the Retired List in the rank of SPC/E-4 on 1 November 2011.
7. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) states that retirement normally will be in the Regular or Reserve grade the Soldier holds on the date of retirement.
8. Paragraph 2-3 (Automatic Grade Determinations) of Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) states most grade determinations do not require action by the AGDRB or the exercise of discretion by other authorities because they are automatic grade determinations that result from the operation of law and this regulation. For example, under Title 10, U.S. Code, section 3961(b), an enlisted Soldier will normally retire at the grade held on the date of retirement. The regulation also provides that, generally, service in a grade will not be considered to have been satisfactory when reversion to a lower grade was the result of the sentence of a court-martial.
9. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests to be placed on the Retired List in the rank/grade of CSM/E-9.
2. The evidence of record shows he was promoted to CSM/E-9 in 2000 and he was reduced in rank to SPC/E-4 as a result of a general court-martial sentence in 2011. Statutory and regulatory guidance provides that service in a grade will not be considered to have been satisfactory when reversion to a lower grade was the result of the sentence of a court-martial. There is insufficient evidence that would warrant overturning that guidance in the applicant's case.
3. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board 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. Absent any mitigating factors, the sentence imposed was appropriate. As a result, clemency is not warranted in this case.
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 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) AR20120006870
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ABCMR Record of Proceedings (cont) AR20120006870
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