BOARD DATE: 27 August 2013
DOCKET NUMBER: AR20130011756
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 sergeant first class (SFC)/E-7 or staff sergeant (SSG)/E-6.
2. The applicant states:
* he wants his rank restored to SFC/E-7 or SSG/E-6
* an officer who committed similar misconduct retired at a one-rank reduction
* while both the officer and he committed bigamy and adultery, the officer's potential maximum punishment totaled over 50 years of confinement while his potential maximum punishment totaled only 1 year of confinement
* allowing him to Soldier on as an E-6 would send the message that officers and enlisted Soldiers receive equal punishment
* he did not receive equal punishment
3. The applicant provides:
* Special Court-Martial Order Number 5
* DA Form 4187 (Personnel Action)
* Excerpts from Army Regulation 635-200 (Active Duty Enlisted Administrative Separations)
* petition for clemency
* addendum to Staff Judge Advocate recommendation
* convening authority action
* request for exception to policy
* DA Form 3349 (Physical Profile)
* Enlisted Record Brief
* five noncommissioned officer evaluation reports (NCOER's)
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 22 July 1994 and he has remained on active duty through continuous reenlistments. He was promoted to SFC on 1 August 2009.
2. On 3 August 2012, he was convicted by a special court-martial of:
* bigamy
* adultery (four specifications)
* assaulting his spouse
* making a false official statement
3. He was sentenced to reduction to specialist (SPC)/E-4 and to perform hard labor without confinement for 90 days. On 29 March 2013, the convening authority approved only so much of the sentence as provided for reduction to SPC/E-4.
4. 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.
5. Courts-martial are conducted under the Uniform Code of Military Justice; Title 10, U.S. Code, sections 801-946; and the Manual for Courts-Martial. If the trial results in a conviction, the case is reviewed by the convening authority who has discretion to mitigate the findings and sentence.
6. The 2012 edition of the Manual for Courts-Martial provides:
a. Subject to limitations in this manual, the sentence to be adjudged is a matter within the discretion of the court-martial; except when a mandatory minimum sentence is prescribed by the code, a court-martial may adjudge any punishment authorized in this manual, including the maximum punishment or any lesser punishment, or may adjudge a sentence of no punishment.
b. Subject to the limitations in this manual, the punishments authorized in this rule (Rule 1003 Punishments) may be adjudged in the case of any person found guilty of an offense by a court-martial.
c. "Any person" includes officers, enlisted persons, persons in custody of the Armed Forces serving a sentence imposed by a court-martial, and, insofar as the punishments are applicable, any other persons subject to the code.
d. The maximum authorized punishment for bigamy is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
e. The maximum authorized punishment for adultery is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year.
DISCUSSION AND CONCLUSIONS:
1. The applicant, a senior noncommissioned officer, was convicted by a special court-martial on 3 August 2012 of bigamy, adultery, assault, and making a false official statement. He was reduced in rank from SFC/E-7 to SPC/E-4 for his misconduct.
2. He contends he did not receive equal punishment for his misconduct when compared to an officer's court-martial for the same offense. However, the 2012 Manual for Courts-Martial provides that a court-martial may adjudge any punishment authorized in the manual, including the maximum punishment or any lesser punishment, or may adjudge a sentence of no punishment, to any person (officer or enlisted).
3. The applicant provided insufficient evidence/argument to show why clemency would be warranted.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.
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.
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