IN THE CASE OF:	

		BOARD DATE:	  14 September 2013

		DOCKET NUMBER:  AR20120021913 


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 that his summary court-martial (SCM) conviction be set aside and removed from his Army Military Human Resource Record (AMHRR).  He also requests reinstatement of his rank to sergeant first class        (E-7).

2.  The applicant states:

	a.  His military record is unjust because of the SCM conviction which took place at the end of his career.

	b.  He was charged with violations of the Uniform Code of Military Justice (UCMJ).

	c.  He entered pleas of not guilty for all of the charges and he was found guilty of one specification of violating an order.

	d.  He was sentenced to a reduction in rank to staff sergeant (E-6) and no other punishment.

	e.  The SCM officer found that the report of investigation was flawed and unreliable.

	f.  The SCM officer believed that his reduction of rank would not affect his retirement rank.

	g.  The SCM officer believed the applicant would be allowed to retire at his highest held rank.

	h.  The SCM officer learned a few days after he submitted the Record of Trial that he had been given faulty advice.

	i.  He was not given the opportunity to consult with a military defense attorney.

	j.  At the same time as his SCM, he was also served with a notice of relief for cause.

	k.  A grave injustice was done in the whole experience because he now knows he could have objected to the SCM under Article 20 of the UCMJ.

	l.  Although the DA Form 5111-R (SCM Rights Notification Waiver Statement) was in his packet, it was never signed by him or his counsel.

	m.  He believes there are other matters that could have been raised by his criminal defense attorney on his behalf.

3.  The applicant provides:

* Continuation to DD Form 149 (Application for Correction of Military Records)
* DD Form 458 (Charge Sheet)
* DD Form 2329 (Record of Trial by SCM)
* Memorandum for Board of Corrections, undated
* DA Form 4187 (Personnel Action)
* Relief for Cause Memorandum, dated 2 September 2002
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 November 2002
* DA Form 3918-R (Facsimile Transmittal Header Sheet), dated 26 July 2002
* DA Form 3918-R, dated 29 July 2002
* DA Form 3918-R, dated 5 August 2002
* Acknowledgement of Notification of Intent to Relieve for Cause, undated
* DA Form 3918-R, dated 12 August 2002
* Request for names to be used as possible witnesses, undated (two copies)
* Notification of Intent to Relieve for Cause, dated 17 July 2002
* DA Form 3918-R, dated 22 August 2002
* 
Request for Additional Documentation, undated
* DA Form 5111-R (unsigned)
* Army Review Boards Agency Letter, dated 12 April 2005
* Letter "To the President of the Board," dated 13 March 2005
* DD Form 149, dated 4 August 2004
* Letter "To the President of the Board," dated 30 June 2004

CONSIDERATION OF EVIDENCE:

1.  On 6 July 1982, the applicant enlisted in the Army in the pay grade of E-1.  He completed training as a health care specialist.  He remained on active duty through continuous reenlistments and extensions.  He was promoted through the ranks to pay grade E-7.

2.  On 17 July 2002, the applicant was notified by his commander of his intent to relieve him for cause.  He was told that his conduct and behavior warrant removal in the best interest of the Army and that confidence in his ability as a noncommissioned officer had been lost.  The commander stated that his decision was based upon the result of an informal investigation and that the investigator made extensive findings substantiating numerous allegations of misconduct.  The commander stated the applicant:

* used his U.S. Government computer to view and download pornographic material from the internet
* sexually harassed one or more U.S. Government civilian employees
* may have sexually harassed female applicants as well
* disobeyed a lawful order given by your commander during the investigation

3.  On 25 July 2002, the applicant was notified that charges were pending against him for:

* downloading pornographic files to the hard drive of the U.S. Government computer on divers occasions between 1 February 2002 and 29 March 2002
* repeatedly using a U.S. Government computer to access and view pornographic material on seven different websites
* accessing and viewing additional adult sexually-oriented material on six different websites
* disobeying a lawful command
* sexually harassing a Department of Defense (DOD) civilian employee
* 
using certain indecent language on two DOD civilian employees on divers occasions between 1 May 2000 and 29 March 2002
* making a false statement under oath

4.  The applicant acknowledged receipt of the notification of intent to relieve him for cause on 26 July 2002.

5.  On 8 August 2002, the applicant signed a DA Form 5111-R voluntarily consenting to a trial by SCM and acknowledging that he had consulted with counsel.

6.  On 27 August 2002, he was convicted by an SCM for disobeying a lawful command from a superior commissioned officer and communicating indecent language.  The DD Form 2329 prepared at the time shows that he was advised of his right to submit written matters to the convening authority, including a request for clemency and the right to request review by the Judge Advocate General.  It shows that during the trial proceedings he did not object to trial by an SCM and he was not represented by counsel.  He was sentenced to a reduction in pay grade to staff sergeant (E-6).

7.  In a written statement, dated 5 September 2002, the applicant stated that he did not intend to submit a rebuttal, nor written matters in his own behalf.

8.  The applicant was relieved for cause on 15 September 2002.

9.  On 30 November 2002, the applicant retired due to obtaining sufficient service for retirement.

10.  The applicant provides a memorandum for the Board, which he contends was prepared by the SCM officer.  In the memorandum he states that during the course of the hearing and upon cross examination of the witnesses, it became apparent to him that the government's case was weak.  He stated that in all but one of the specifications, he determined that the government's case did not rise to even a preponderance of the evidence, and therefore, he entered a finding of not guilty in all specifications less one.  He states the remaining specification was a charge of violation of a lawful order.  He states:

* prior to rendering a finding, he adjourned the hearing to consult with the Beckley Military Entrance Processing Station (MEPS) first sergeant and his Battalion S-1/Adjutant
* he also consulted with the Manual for Courts-Martial for legal guidance
* although there was evidence that the applicant did violate a valid order given by a superior commissioned officer, the evidence was slight
* he was advised that he should impose a penalty of reduction to the next inferior grade and that regardless of the decision, the applicant would still be allowed to retire in pay grade E-7
* it was his intention to ensure that a clear message was sent that violations of orders would not be tolerated
* the extenuating circumstances caused him to believe the applicant's actions were explainable and not unreasonable
* based on the guidance he received from the MEPS first sergeant and his Battalion S-1/Adjutant he entered a finding of guilty for one specification of violation of an order of a superior commissioned officer
* he does not believe that it was the applicant's intent to violate an order
* days later he was informed that he had been incorrectly advised and that the applicant would retire in pay grade E-6
* had he been properly advised he would not have elected to reduce the applicant in rank
* now with the additional knowledge that he has, if the SCM system would permit, he would withdraw the conviction and reinstate the applicant to his former pay grade

11.  The applicant provides an undated memorandum to his former commander notifying him of his intent to contest all allegations that he was being charged with and requesting that any final decision to relieve him for case be delayed until the final decision of the SCM hearing.  He also provides memoranda to his former commander requesting the correct spelling of the names of individuals to be used as possible witnesses and additional documentation.  He submits documents referencing a case he previously submitted to the Board.

12.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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 modify the severity of the punishment imposed.

13.  Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It states:

	a.  once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority; and

	b.  unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.  Documents can be removed upon a showing of clear and convincing evidence that the document is untrue or unjust in whole or in part.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The summary court-martial officer states that the government's case was weak and that he would not have elected to reduce the applicant in rank had he not been misinformed.  He also states that the applicant was convicted of only one specification of disobeying a lawful order.  

4.  Contrary to the summary court-martial officer’s current statement, the evidence of record shows the applicant was convicted by an SCM on two charges -- one specification of disobeying a lawful command from a superior commissioned officer and one specification of communicating indecent language. He was sentenced to a reduction in pay grade and he was properly reduced to pay grade E-6, the grade he held at the time of his retirement.

5.  In accordance with the applicable regulation, once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  The fact that the summary court-martial authority now seems to have changed his mind regarding the decisions he made at that time is not a sufficient basis for granting him clemency.

6.  The applicant has failed to show error or injustice in the actions taken by the Army in his case.  In view of the foregoing, his request should be denied.

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)                                         AR20120021913



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120021913



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1