BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140012153 


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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20120021472, dated 23 July 2013.  Specifically, he requests an upgrade of his under other than honorable conditions discharge, to an honorable discharge, and a personal appearance hearing.

2.  The applicant states, in effect, he had Miranda rights that were never extended even after he was taken into custody.

3.  The applicant provides a self-authored statement in which he addresses numerous complaints against the attorney that represented him in his prior case.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120021472 on 23 July 2013.

2.  The applicant provides a new argument that was not previously considered by the Board.  Therefore, it is considered new evidence that warrants consideration. 

3.  The applicant was appointed as a second lieutenant in the U.S. Army Reserve on 30 May 1998.  He entered active duty on 22 August 1998, was promoted to first lieutenant on 21 February 2000, and was promoted to captain on 1 March 2002.
4.  His record contains a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 26 June 2004.  This form indicates he was suspected of assault and contains the following statements:

	a.  "The investigator whose name appears below told me that he is with the United States Army Military Police Investigations and wanted to question me about the following offense(s) of which I am suspected: Assault.  Before he/she asked me any questions about the offense(s), however, he made it clear that I have the following rights:

		(1)  I do not have to answer any questions or say anything (the applicant affixed his initials after this statement);

		(2)  anything I say or do can be used as evidence against me in a criminal trial (the applicant affixed his initials after this statement);

		(3)  I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me during questioning.  This lawyer can be a civilian lawyer I arrange for at no expense to the Government or a military lawyer detailed for me at no expense to me, or both (the applicant affixed his initials after this statement);

		(4)  if I am now willing to discuss the offense(s) under investigation, with or without a lawyer present, I have the right to stop answering questions at any time, or speak privately with a lawyer before answering further, even if I sign the waiver below (the applicant affixed his initials after this statement); and

		(5)  the investigator asked the applicant, "Have you been advised of your legal rights in the past 30 days?" and the applicant responded "No" and affixed his initials after these statements."

	b.  The investigator signed and printed his name and indicated his organization in Section B (Waiver).

	c.  The applicant selected and affixed his initials in Section C (Non-waiver), next to two blocks that stated, "I do not want to give up my rights I want a lawyer" and "I do not want to be questioned or say anything."  He also signed his name in this section.

5.  As stated in ABCMR Docket Number AR20120021472:
	
	a.  On 6 June 2005, he was convicted by a general court-martial of failing to obey a lawful general order (curfew violation), committing indecent acts with a female enlisted Soldier (two specifications), and fraternization.  He was sentenced to be confined for 9 months and to be dismissed from the service.  On 15 September 2005, the convening authority approved only so much of the sentence as provided for confinement for 6 months and a dismissal.

	b.  On 20 February 2007, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  On 28 June 2007, the U.S. Court of Appeals for the Armed Forces denied his petition for a grant of review.

	c.  On 15 August 2007, the Assistant Secretary of the Army ordered the sentence to be executed.

	d.  On 12 September 2007, the applicant was dismissed under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph       5-17, due to a court-martial with an under other than honorable characterization of service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had completed 8 years, 7 months, and 11 days of creditable active service.

6.  Army Regulation 600-8-24 prescribes policies and procedures governing transfer and discharge of Army officer personnel.

	a.  Paragraph 5-17 states an officer convicted and sentenced to dismissal as a result of general court-martial proceedings will be processed pending appellate review.  A Reserve Component officer may be released from active duty pending completion of the appellate review or placed on excess leave in lieu of release from active duty.

	b.  Paragraph 1-22a provides that an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty.

	c.  Paragraph 1-22b provides that an officer will normally receive an under honorable conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

7.  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.
8.  The 2005 Edition of the Manual for Courts-Martial provides that the maximum authorized punishment for indecent acts with another is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.

9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

10.  Title 10, U.S. Code, section 831 – Article 31 (Compulsory Self-Incrimination Prohibited) of the Uniform Code of Military Justice (UCMJ) states:

	a.  No person subject to this chapter may compel any person to incriminate himself or to answer any questions the answer to which may tend to incriminate him.

	b.  No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

	c.  No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence in not material to the issue and may tend to degrade him.

	d.  No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.

11.  Manual for Courts-Martial, Rule 305 (Warnings about rights) states a statement obtained in violation of this rule is involuntary and shall be treated under Rule 304 (Confessions and admissions) (an involuntary statement or any derivative evidence there from may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection to the evidence under this rule).  	
	
	a.  A person subject to the code who is required to give warnings under Article 31 may not interrogate or request any statement from an accused or a person suspected of an offense without first informing the accused or suspect of the nature of the accusation; advising the accused or suspect that the accused or suspect has the right to remain silent; and advising the accused or suspect that any statement made may be used as evidence against the accused or suspect in a trial by court-martial.

	b.  When evidence of a testimonial or communicative nature within the meaning of the Fifth Amendment to the Constitution of the United States either is sought or is a reasonable consequence of an interrogation, an accused or a person suspected of an offense is entitled to consult with counsel, to have such counsel present at the interrogation, and to be warned of these rights prior to the interrogation if the interrogation is conducted by a person subject to the code who is required to give warnings under Article 31 and the accused or suspect is in custody, could reasonably believe himself or herself to be in custody, or is otherwise deprived of his or her freedom of action in any significant way; or the interrogation is conducted by a person subject to the code acting in a law enforcement capacity, or the agent of such a person, the interrogation is conducted subsequent to the preferral of charges, and the interrogation concerns the offenses or matters that were the subject of the preferral of the charges.  When a person entitled to counsel under this rule requests counsel, a judge advocate or an individual certified in accordance with Article 27(b) shall be provided by the United States at no expense to the person and without regard to the person’s indigency or lack thereof before the interrogation may proceed.  In addition to counsel supplied by the United States, the person may retain civilian counsel at no expense to the United States.  Unless otherwise provided by regulations of the Secretary concerned, an accused or suspect does not have a right under this rule to have military counsel of his or her own selection.

	c.  Absent a valid waiver of counsel, when an accused or person suspected of an offense is subjected to custodial interrogation and the accused or suspect requests counsel, counsel must be present before any subsequent custodial interrogation may proceed.

	d.  If a person chooses to exercise the privilege against self-incrimination under this rule, questioning must cease immediately.  If a person subjected to interrogation chooses to exercise the right to counsel, questioning must cease until counsel is present.

	e.  After receiving applicable warnings under this rule, a person may waive the rights described therein and make a statement.  The waiver must be made freely, knowingly, and intelligently.  A written waiver is not required.  The accused or suspect must acknowledge affirmatively that he or she understands the rights involved, affirmatively decline the right to counsel and affirmatively consent to making a statement.

12.  The Miranda warning, also referred to as Miranda rights or Miranda rule, is a right to silence warning given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to preserve the admissibility of their statements against them in criminal proceedings.  The Miranda warning is part of a preventive criminal procedure rule that law enforcement are required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-incrimination. Under the UCMJ, Article 31 provides for the right against compelled self-incrimination.  Interrogation subjects under Army jurisdiction must first be given Department of the Army Form 3881, which informs them of the charges and their rights, and the subjects must sign the form.  Most branches of the U.S. Military require that all arrested personnel be read the "rights of the accused" and must sign a form waiving those rights if they so desire; a verbal waiver is not sufficient. The U. S. Supreme Court referenced the military’s "warning rights" practice under Article 31, UCMJ, when deciding to establish the "Miranda Warning" requirement.  However, a showing of indigence is required before a defendant is provided counsel without cost in the civilian system.

13.  The U.S. Army Court of Criminal Appeals (ACCA) noted in U.S. v. Redd (2008), both the Miranda and Article 31 warnings inform the accused or suspected individuals of their right to remain silent and how statements can be used against them.  "They differ," the court added, "in that Article 31 requires notice to the suspect of the nature of the offense under investigation while Miranda does not; in addition, Miranda requires notice of a right to appointed counsel without charge for indigent suspects."  On this last point, the court said, "the right to appoint military counsel for soldiers exists regardless of indigency."  There is so much overlap between these warnings that the ACCA in Redd found that a civilian detective’s notification of rights provided to a suspected service member under Miranda, "coupled with notice of the allegation against him, satisfied the notice of appellant’s rights required by Article 31 and Military Rule of Evidence 305."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his character of service should be upgraded to honorable and he should be granted a personal appearance hearing because he had Miranda rights that were never extended even after he was taken into custody.

2.  The Supreme Court modeled the Miranda warning after the military's Article 31 rights, which consequently offer the accused or suspect more rights, and also meet the criteria and intent of the Miranda rights.  

3.  His record contains a DA Form 3881, dated 26 June 2004, which he signed and initialed indicating he had been read/or read his Article 31 rights and understood them.  As such, his contention lacks merit.

4.  As stated in ABCMR Docket Number AR20120021472:

	a.  His trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

	b.  His record of service while serving as a captain included one general court-martial conviction for serious offenses (failing to obey a general order, committing indecent acts with a female (specialist), and fraternization).  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

	c.  The applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision of his case.  Therefore, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

5.  Based on the foregoing, there is insufficient evidence to grant the 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120021472, dated 23 July 2013.




      __________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)                                         AR20140012153





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ABCMR Record of Proceedings (cont)                                         AR20140012153



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