MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 April 2001    
	DOCKET NUMBER:   AR2000050091

	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. Carl W. S. Chun		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Barbara J. Ellis		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, that a Special Court-Martial (SPCM) order, dated 1 November 1999, be removed from his performance fiche and transferred to his restricted fiche in his Official Military Personnel File (OMPF).  

APPLICANT STATES:  That Army Regulation 15-185 clearly allows for the removal and/or transfer of this SPCM if the Board finds by a preponderance of the evidence that allowing the SPCM to remain in his OMPF would be unjust.  This conviction for obstruction of justice is the equivalent of a federal misdemeanor conviction.  It is not the effect on his civilian record that he endeavors to change, it is the detrimental damage that will be done to his military career that is of utmost concern to him.  As reflected by the accompanying statements, this entire episode escalated from an administrative or nonjudicial proceeding into a full scale court-martial.  The only reason that he turned down the Article 15 proceedings was because of the lack of information or explanation he was receiving from his chain of command.  Had [a colonel] taken the time to discuss this matter with him or his attorney the court-martial would have been avoided.  Had he accepted the Article 15 proceedings, even if he was found guilty, the results may have been placed in his restricted fiche.  However, even if the results of the Article 15 proceeding were placed in his performance fiche, he would now be allowed to petition to have it transferred to his restricted fiche.  He was acquitted of all substantive offenses and found guilty of obstruction of justice, which was not alleged in the original Article 15.  Not only was it manifestly unfair for the Government to add several specifications in retaliation of his turning down the Article 15 proceedings, but the finding of guilt pulls at the strings of logic.  If he was not guilty of all substantive offenses, what part of justice was he obstructing?  If he did not engage in the alleged misconduct to begin with, as indicated by the not guilty verdicts, how can he be obstructing an investigation into legal activities?  To leave the SPCM in his OMPF will lead the casual observer to conclude that he did engage in some type of misconduct.  Few persons will be able to identify the paradox of the panel’s decision.  When his file is reviewed for promotion, all the reviewer will see is that he was found guilty at a court-martial proceeding.  Because of this one illogical finding, his military career will be forever tarnished and possibly terminated.  Eleven years of exemplary service will be swept aside on the basis of an overzealous prosecutor and vindictive command.  

In support of his application, he submits a copy of DA Form 2627 (Record of Proceedings under Article 15, UCMJ) dated 12 March 1999; and four letters of support from the Executive Officer of the 1st Squadron, 4th Cavalry Brigade, Fort Knox, Kentucky; the Battalion Sergeant Major of the 1st Battalion (TS) (CAV), 409th Regiment, Fort Knox, Kentucky; the 1st Cavalry Division Inspector General NCOIC (a master sergeant); and his defense counsel.           

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

The applicant’s military records show that he enlisted on 10 March 1987.  He continues to serve and is presently serving with E Troop, 1st Cavalry Squadron of the 4th Cavalry Brigade in Fort Knox, Kentucky, in military occupational specialty 19K (armor crewman).   

On 10 July 1999, contrary to his plea of not guilty, the applicant was convicted by SPCM of obstructing justice.  He was sentenced to a forfeiture of $100 pay per month for 6 months.  The convening authority approved the sentence on 
1 November 1999.

A review of the applicant’s performance fiche in his OMPF revealed the SPCM dated 1 November 1999.

In the processing of this case, a staff advisory opinion was obtained from the Department of the Army Suitability Evaluation Board (DASEB).  In this opinion, the Assistant President of the DASEB notes that the applicant was tried by a SPCM based upon his refusal of an Article 15 hearing by his Brigade Commander.  The applicant demanded trial by court-martial.  He now argues that it was unfair for the court-martial to include more charges than the initial Article 15, which he refused.  The DASEB points out that when a soldier refuses an Article 15 this refusal does not force a commander to impose a court-martial.  Such a decision is an independent decision and the commander is not bound by the initial charges on the Article 15.  The practice of court-martial charges being more complete than those on Article 15 proceedings is normal.  It is important to note that all charges included on the SPCM order occurred at the same location and time as the two charges listed on the Article 15 (DA Form 2627).  The applicant’s defense counsel, a school trained military lawyer, should have known that the charges for a SPCM order might be more comprehensive that those charges listed on the original Article 15.  The applicant’s defense counsel’s current letter of support does not excuse this failure.  

The DASEB opines the applicant’s argument that he was found not guilty of any “substantive” charges, therefore, he could not have obstructed justice, is not logical.  The fact that he was found guilty of intimidating his wife into not testifying makes it clear as to why the other charges were not upheld.  Without the spouse’s testimony the only charge remaining with sound evidence was the one observed by the Military Police who responded to the incident.  To the DASEB this finding appears very logical.          

The DASEB further noted that the applicant is correct that the presence of this SPCM in his performance fiche may forever tarnish and possibly terminate his 

career.  However, it is properly filed as directed by governing regulations and the applicant has provided no evidence to justify its removal.  The DASEB opines that there is no evidence to support his claim that its presence in his record is the result of an overzealous prosecutor and a vindictive commander.  On the contrary, if anyone other than the applicant is at fault it appears to have been the overzealous defense counsel.  Nevertheless, the applicant had the opportunity to resolve this issue in an Article 15 hearing and he requested his day in court.  He must now live with the court’s decision.  The DASEB opines the applicant has not proven his case and recommends that this application be denied. 

This advisory opinion was furnished to the applicant and he responded in a rebuttal dated 20 February 2001.  In his rebuttal, the applicant states that there are several contentions made in the advisory opinion that are simply untrue.  The advisory opinion states that he “was found guilty of intimidating my wife into not testifying” and that “without the spouse’s testimony” it is clear why the other charges were not upheld.  However, his wife did testify as a witness for the United States and she stated that at no time did she feel that he was in any way intimidating her.  He contends that it would seem that the writer of the opinion is simply assuming or creating facts to justify the decision to deny his request.  

The applicant further stated that the advisory opinion also states that it is not manifestly unfair to add charges after an Article 15 is turned down and that it is normal procedure to engage in such activity.  The applicant disagrees that it is “normal procedure” and that even if it is, that in no way makes it a fair or just activity.  He contends that the writer of the opinion notes that the additional charges all “occurred at the same location and time” as the original charges.  That being the case, and since no additional investigation into those additional charges was necessary, why weren’t all of the charges included on the Article 15?  He states the reason is obvious, they were added as retribution for following his attorney’s advice and turning down the Article 15.

The applicant goes on to state that the opinion suggests that if anyone is at fault, other than himself, it is his “overzealous, [school trained] defense counsel”.  If that is truly the opinion of the DASEB, why should his request be denied for following the advice of the attorney that was provided to him by the same Army that was prosecuting him?  He contends that he and other soldiers are not well versed in the Uniform Code of Military Justice or the military judicial system.  When the only attorney that he has been provided recommends to him that he should turn down the Article 15, how is he supposed to know that he may be over zealous in his recommendation?  

The applicant included memoranda of support that was submitted with his clemency matters and a copy of his wife’s testimony at the SPCM.  He states that he is not asking the Board to disapprove the finding of guilt or to find error in the process.  He is simply asking for the opportunity to continue with, what has thus far been, a proud military career.  He simply requests the same thing he would ask if he had originally accepted the Article 15 proceedings and been found guilty.  He only asks that the record be moved into his restricted fiche.  

Army Regulation 600-8-104 (Military Personnel Information Management/Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual file, and Army Personnel Qualification Records.  Table 2-1 of that regulation provided, in pertinent part, that court-martial orders that have at least one approved finding of guilty on one specification would be filed in the performance fiche of the OMPF.    
 
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The Board considered the applicant’s contentions and the letters of support provided with his application.  The Board also considered the DASEB advisory opinion and the applicant’s rebuttal to the advisory opinion.  However, the evidence of record shows that, contrary to the applicant’s plea of not guilty, he was convicted by SPCM of obstructing justice on 10 July 1999.

2.  The applicant’s SPCM is properly filed on his performance fiche in his OMPF in accordance with applicable regulations and the applicant has failed to provide sufficient evidence to warrant its removal. 

3.  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 this requirement.

4.  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

JNS____  CLG_____  BJE_____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000050091	
SUFFIX		
RECON		
DATE BOARDED	20010419	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	134.0000	
2.		
3.		
4.		
5.		
6.