MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           11 August 1999     
	DOCKET NUMBER:   AR1999024114

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John H. Kern		Chairperson	
	Mr. Walter T. Morrison		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:  In effect, reinstatement on active duty or early retirement.

APPLICANT STATES:  That he was wrongfully convicted by a general court-martial at Fort Hood, Texas because he would not perjure himself by testifying in a case concerning a command sergeant major.  He was suspended from his duties on 4 December 1996, and was ordered to help prosecute the command sergeant major.

The prosecutor conducted an investigation charging him (the applicant) with over 40 violations of the UCMJ, and acted improperly in the conduct of that investigation.

He received a relief for cause NCO evaluation report which indicated he refused to sign the report, when in fact, he never saw the report until after his court-martial.

He was eventually charged with 33 violations of the UCMJ and tried by a general court-martial which lasted nine days.  There were various improprieties during the trial, to include perjury and witness intimidation.  After hearing all the evidence he was found guilty of 4 minor charges and was sentenced to forfeit $1000.00 per month for 2 months, and to be reprimanded.  He was found innocent of all major charges.  

After the court-martial, the division chief of staff informed his attorney that he thought he (the applicant) was guilty regardless of the court’s decision, clearly showing that he was being railroaded out of the Army.  After the trial, he was informed that he could not reenlist because of the court-martial conviction, even though he had 17 years and 6 months of service.  About that time, his defense counsel was reassigned, leaving him without counsel for a time.  He was assigned new counsel, who worked hard but had never submitted matters for post trial before.

The division commander disapproved his request for clemency, and the division Staff Judge Advocate thwarted his attempt to stay on active duty.  At the time he approved the sentence, the CG knew that the DISCOM (division support command) commander was not going to grant his request to reenlist-and his request was denied.

Prior to his discharge, he discovered that the division had received a notice that he had been denied reenlistment under the qualitative management program (QMP), in October 1997, and that the command chose to ignore this notice, knowing that he could appeal to remain on active duty, and that he would be entitled to separation pay, if discharged under the QMP program.  Because he was not allowed to reenlist, he was penalized over $950,000.00.  
The court-martial board did not intend for him to leave the service, and the command should not circumvent the board’s intent.  

He encloses copies of his last few NCO evaluation reports, which clearly show how great he was, having been promoted from the secondary zone twice, and reaching a rank in 17 years that few of the NCOs in his specialty ever reached.  He is a Desert Storm veteran who fought for his country.  

He states that the prosecutor and command acted with malice and that he is entitled to retired pay or some sort of compensation.  He states that this is an example of how black NCOs are treated vis-a-vis white NCOs and officers, in that there are many instances where senior black NCOs are court-martialed while white NCOs and officers are allowed to retire, separate, or be reassigned.    
EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army on 8 July 1980 and remained on continuous active duty until his discharge in 1998.  He was promoted to the rank of Master Sergeant E-8 on 1 August 1995, has attended numerous military schools, to include the track vehicle mechanic course, the Abrams tank turret mechanic course, the battalion training management systems course, and the NCO advanced course.  The applicant has been awarded the Bronze Star Medal, the Meritorious Service Medal, six awards of the Army Commendation Medal, four awards of the Army Achievement Medal, and the Southwest Asia Service Medal with 3 bronze service stars, among others.  The applicant’s NCO evaluation reports, except for his relief for cause report in 1997, have been outstanding throughout his military career.

The applicant’s NCO evaluation report for the period July 1996 through 
April 1997 shows that he was a first sergeant of a division support command (DISCOM) headquarters company; and that the report was a relief for cause report.  The applicant’s rater stated that the applicant’s leadership style was not attuned with today’s Army, that he sexually and verbally harassed subordinates, and used vulgar and abrasive language with subordinates.  The rater went on to say that the applicant maltreated both NCOs and soldiers by berating and humiliating them, and that he created a hostile climate characterized by fear.  The applicant’s senior rater stated that he should not be selected for an assignment leading soldiers, that he should not be promoted; and that he was disrespectful to peers, subordinates, and superiors, and demonstrated leadership by intimidation.

In an 18 April 1997 memorandum the applicant’s DISCOM commander stated that a formal investigation conducted in December 1996 disclosed that the applicant had engaged in a pattern of misconduct including maltreatment of subordinates, sexual harassment, disrespect, and other offenses; and that his removal from his position as the unit’s first sergeant was based on his lack of professional conduct and was in the best interests of the Army.

On 1 August 1997 the applicant was arraigned and tried b a general court-martial which convened at Fort Hood on 33 violations of the UCMJ.  These charges included behaving with disrespect toward his superior commissioned officer, failing to allow his soldiers access to the commander’s open door policy; willful dereliction in the performance of his duties on divers occasions by asking subordinate soldiers about their sexual practices, by speaking to subordinate  soldier about his sexual prowess and her sexual habits, about her sexual plans, about her kinky sexual habits, and so forth; maltreating a subordinate by asking her to go home with him, maltreating a subordinate by asking her blatant sexual questions, maltreating a subordinate by regularly humiliating her in unit PT formations, and so on; committing an indecent assault upon a person by placing his hands upon her buttocks, communicating to a subordinate certain indecent language, wrongfully soliciting a subordinate to commit oral sodomy and intercourse.  The applicant pled not guilty to all these charges and was found not guilty, or the charges were dismissed by the military judge.

The applicant, however, was found guilty of willful dereliction in the performance of his duties by regularly using foul language while addressing soldiers, by speaking on divers occasions about his penis and making sexual comments about soldiers in his unit, by conducting private business in a government workplace both on and off duty hours, and by maltreating a subordinate.  The applicant was sentenced to receive a reprimand and to forfeit $1000.00 per month for 2 months.

The convening authority approved the sentence and stated that it would be executed.  He issued the applicant a reprimand for his dereliction of duties in that he failed to set the appropriate standard of behavior and to maintain a professional, non-hostile work environment; that he misused his position and authority by conducting personal business sales and negotiations in his office with subordinates, both on duty and off duty hours.  He maltreated a subordinate NCO by regularly cursing and screaming at her both in public, in front of other soldiers and in private, humiliating her in front of her soldiers; and that he failed to address his subordinates in a professional manner by regularly using foul, sexually explicit language when addressing both male and female soldiers.  He went on to say that the applicant displayed a gross lack of judgment and destroyed the trust and confidence of the soldiers he was assigned to train and care for.

In a 7 November 1997 memorandum the applicant was informed by DA that the applicant was barred from reenlistment under the QMP.

On 18 December 1997 the applicant’s defense counsel submitted a request for clemency on behalf of the applicant, requesting that the findings of guilty be disapproved, that the applicant be allowed to reenlist, that he receive nonjudicial punishment under Article 15, UCMJ, for the offenses for which he was convicted, and that an administrative separation action be initiated.  Counsel stated that the applicant would not opposes such actions.  Counsel stated that the applicant had a ETS (separation) date of 31 December 1997 and would be forced to separate because he was unable to reenlist with a court-martial conviction.  Counsel stated that he stood to lose a phenomenal amount of retirement pay, and that while the court-martial panel intended to punish the applicant, it  believed he should stay in the Army.  Counsel states that the applicant was a victim of “shotgun blast” prosecution, that while charged with 33 violations he was convicted of only 4 violations for minor conduct, which would ordinarily be handled through counseling, a reprimand, or nonjudicial punishment.  Counsel briefly discusses each charge for which the applicant was convicted, in an attempt to show how very minor they were.  Counsel stated that a court-martial conviction would have a devastating impact on the applicant for the rest of his life, that the applicant was in dire financial straits, and that he needed to reenlist and get back on solid financial ground.  Counsel commented on the applicant’s record, 17 ½ years of service, his awards, and his devotion to duty.  Counsel included a letter of recommendation from a retired command sergeant major, a letter of recommendation from a command sergeant major who had worked with the applicant on a few occasions, and who stated that he was one of the best NCOs he had worked with in 26 years; a letter of acceptance (into a vacant position) from the aforementioned command sergeant major and from the battalion commander of a forward support battalion; and a copy of the applicant’s NCO evaluation report ending in July 1995.   

On 24 December 1997 the 1st Cavalry Division commanding general denied the applicant’s request for clemency. 

On 30 December 1997 the commander of the DISCOM disapproved the applicant’s request for an exception to policy in order to reenlist. 

On 9 January 1998 applicant’s counsel requested reconsideration of the commanding general’s 24 December 1997 decision, stating that uncovered additional information should be considered.  He stated that the applicant was not notified by the 1st Cavalry Division retention office of his bar to reenlistment under the QMP, and that while local action appears to take precedence over the QMP, he should have read (received) his QMP packet.  Counsel requested that the convening authority disapprove the findings of guilty, extend him on active duty for 30 days, and direct that his battalion commander inform him of the action under the QMP.  Counsel stated that the applicant would not appeal the QMP; however, he would be discharged pursuant to that program with ½ separation pay.  In the alternative, counsel suggested that the convening authority do nothing regarding his conviction but order him to be extended on active duty and again be discharged pursuant to the QMP.  Counsel stated that the applicant would not oppose either of those actions and would leave the Army as soon as action under the QMP was processed. 

On 14 January 1998 the convening authority denied this request for clemency.

The applicant was discharged on 15 January 1998.  He had 17 years, 6 months, and 8 days of service.  He was awarded half involuntary separation pay in the amount of $27,190.60.

Maximum punishment authorized for willful dereliction in performance of duties by the MCM is a bad conduct discharge, 6 months confinement, and forfeiture of all pay and allowances.  Maximum punishment for maltreatment of subordinates is a dishonorable discharge, 1 year confinement, and forfeiture of all pay and allowances.

Army Regulation 601-280 prescribes criteria for the Army Retention Program and sets forth policies, command responsibilities, and processes for immediate reenlistment or extension of enlistment of soldiers currently serving in the 
Active Army.  Paragraph 3-9 states in pertinent part that soldiers with a court-martial conviction during their present term of service, which has not been waived, are ineligible for immediate reenlistment.

Paragraph 3-10 states, in pertinent part that requests for waivers will be  submitted only for meritorious cases.  All requests will be fully substantiated with properly documented evidence.  Documents that may be considered relevant  and of value in reaching a sound decision on the request should be included. The authority to determine whether a case has merit rests at all levels of command.  Any commander in the rank of LTC or higher may disapprove any case that  does not have merit and does not warrant a recommendation for approval without further processing.  Disapproved requests will not be forwarded to  higher authority.

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.  Notwithstanding the applicant’s contention, there is no evidence, nor has he provided any, that shows that he was wrongly convicted by a general court-martial.  Trial by court-martial was warranted by the gravity of the offenses charged, and absent evidence to the contrary, conviction was effected in accordance with applicable law and regulations.

2.  The charges for which the applicant was convicted, willful dereliction in the performance of his duties, and maltreatment of a subordinate, are not considered minor charges, as reflected in the maximum punishment authorized by the MCM for those offenses.  This Board rejects the argument of applicant and counsel as such.

3.  Consequently, the sentence passed down by the court-martial board is considered lenient.  The applicant could have received a dishonorable discharge. Nonetheless, the court-martial board made its intent known.  However, the applicant’s command did not circumvent the board’s intentions, nor is there evidence that his command acted with malice or prejudice toward him.  His  sentence had no bearing on the applicant’s subsequent separation from the Army.  His court-martial conviction did.  He was discharged because his commander rightly decided that his request for a waiver was not sufficiently meritorious to warrant approval, and thus he denied his request for a waiver in order to reenlist.  In view of the nature of the charges for which the applicant was convicted this Board agrees with that decision.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  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

__jhk___  ___wtm__  ___jpi__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024114	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990811	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 100.06		
2.  105.00		
3. 110.03		
4. 136.00		
5.		
6.