MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            30 June 1999
	DOCKET NUMBER:   AC96-07020
                                        AR19980000346

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. John P. Infante		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
           	       records
	Exhibit B - Military Personnel Records (including
	      	       advisory opinion, if any)

APPLICANT REQUESTS:  That the finding of “guilty” by a special court-martial of making a false official statement be set aside and that his rank be restored to staff sergeant (E-6).  In the alternative, he requests that the portion of his sentence reducing him from pay grade E-6 to sergeant (E-5) be disapproved.

APPLICANT STATES:  In essence, that he was not involved in any illegal transactions at the U-Haul dealership.  He also states that he never saw the 
U-Haul contract until he was summoned into the U-Haul dealership office to pay the deposit.  In support of his contentions, the applicant submits a copy of his record of trial, audio tapes of the trial, a private investigator’s report, a CID report that includes his sworn statement, and other supporting statements.

EVIDENCE OF RECORD:  The applicant's military records show:

He entered the Army on 15 February 1974 and completed 20 years, 7 months and 16 days of active service, attaining the pay grade of E-6.  On 1 October 1994 he was retired for length of service in pay grade E-5.  His awards and decorations included the Army Commendation Medal, the Good Conduct Medal 6th award, the National Defense Service Medal, 2nd award, and the Primary Leadership Development Ribbon.  He also received numerous certificates of achievement for training and performance of duty.

Prior to his trial, in a statement to the CID when asked ”Why did you have [the civilian] make the transaction in the U-Haul dealership?” the applicant responded “I did not want the dealer to think I was CID.”  When asked “Do you think this was the right thing to do?” the applicant responded “Yes.  If I was going to get a 
U-Haul truck for $460.00 that was a greater deal than the full price….”

Court-martial charges against the applicant were intended initially to be referred to a summary court-martial.  The applicant, however, informed his commander that he was not accepting the summary court-martial.  The charges were subsequently referred to a special court-martial empowered to adjudge a bad conduct discharge. 

On 21 June 1994 the applicant was arraigned on charges before a special court-marital empowered to adjudge a bad conduct discharge, charged with violation of the UCMJ, specifically Articles 80, 81, and 107.  Charge I and its specification stated that between on or about 1 December 1993 and 20 December 1993 the applicant attempted to make a false and fraudulent claim against the United States in the amount of about $1,137.40.  The applicant pled “not guilty”.  This charge was dismissed by the military judge on a motion by the defense counsel.  Charge II and its specification stated that on or about 1 December 1993, the applicant conspired with [a civilian] to make a false claim against the United 
States.  The applicant pled “not guilty,” and he was found “not guilty” of this charge.  The third charge and its specification stated that “on or about 

21 December 1993 the applicant made a false official statement.”  This charge and specification arose from a statement the applicant made on 21 December 1993 to a CID special agent, to wit:  “I was not trying to do anything illegal,” which was expanded into his having said that he was not trying to do anything illegal when trying to obtain a $1,137.40 U-Hall contract for $460.00.

The applicant’s sentence included a reprimand, a fine of $2,000.00, and reduction to the pay grade of E-5.  The sentence was approved by the convening authority on 25 August 1994.

The applicant’s defense counsel in his appeal to the commanding general stated that as a tactical matter, the defense chose, with consultation and consent of the accused [the applicant], not to present any evidence as to Charge III, since the charges to lie about no longer existed.  He further stated that the defense felt no one could be found guilty of lying about offenses that had been disposed of.  

The staff judge advocate examined the record of trial and found it to be legally sufficient to support the findings of guilty and the sentence.

In his request for clemency, the defense counsel summed up the details of the case as follows:  

Upon his retirement from the Army, the applicant intended to do a do-it-yourself (DITY) move to Greenville, North Carolina.  As he planned his departure, he remembered an acquaintance [a civilian] he knew as a co-worker of his wife.  He remembered the civilian because he had overheard him tell another soldier that he could get him a good deal on
U-Haul rentals.  The applicant contacted the civilian who said he would be happy to make some phone calls.  The civilian later gave the applicant some quotes on prices for the trailer he wanted. Satisfied with the deal that the civilian had apparently worked out for him, the applicant accompanied the civilian on 21 December 1993 to Jim’s Auto Repair, which was a service station/garage/U-Hall rental center.  Unbeknownst to the applicant, the manager of the U-Haul had contacted the Fort Bliss CID 
because he believed that the civilian and “another black man” were trying to get a false contract to submit for payment.  The CID set up an undercover operation on the date when the applicant and the civilian were scheduled to come in to sign the contract and pay the agreed upon price for the trailer.  As soon as the applicant paid part of the price for the contract, the two agents arrested the applicant.   

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s trial and conviction by court-martial were accomplished in accordance with applicable law and regulation.  The Board does not have the authority to set aside the lone finding of “guilty” reached by the court on the charge of making a false official statement.  

2.  The Board notes the defense counsel’s argument that the applicant should not have been found guilty of lying about charges that had been disposed of.  However, the evidence shows the applicant did attempt to secure a contract for a U-Haul at a substantially reduced cost through his contact with a civilian whom he had overheard tell another soldier he could get him a good deal on U-Haul rentals.    

3.  The Board also notes that the applicant was found not guilty of conspiring with a civilian to make a false claim against the United States.  However, the Board also further notes from the summary of the applicant’s defense counsel that the applicant deliberately sought out and contacted the civilian to help him secure a U-Haul contract, which according to the applicant’s own statement to the CID was a greater deal than the full price.   

4.  Although he may not have been directly involved in the dealings with the U-Haul contract, it is obvious that he intended to benefit from the negotiations and it is difficult to believe that he did not know that those negotiations were not legitimate.   

5.  Under the circumstances the Board finds no reason for changing the sentence of the court-martial which included a one-grade reduction in rank.  

6.  The Board considers the sentence of the court-martial to have been very lenient, considering that it could have adjudged a sentence that included a bad conduct discharge, which would have prevented the applicant from retiring.  

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC96-07020/ AR1998000346
	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990630	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director, ABCMR	
ISSUES         1.	133  	
2.	105	
3.		
4.		
5.		
6.