RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            11 MARCH 2004                  
	DOCKET NUMBER:   AR2003092613

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

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Mae M. Bullock		Member	
	Mr. Patrick H. McGann, Jr.		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that all or part of his general court-martial be overturned and that he be permitted to receive an administrative discharge with issuance of a Reentry (RE) Code of 1 or 2.

2.  The applicant states, in effect, that he was court-martialed for an offense for which he had already been prosecuted by the state of Colorado.  

3.  He states that he was told that the maximum amount of confinement he could receive for his offenses was 21 months but found out later that the maximum punishment was only 11 months.  He states the fact that he might face 21 months in prison influenced his decision to plead guilty and argues that “the judge sentenced [him] to 6 months based on a maximum sentence of 21 months” and now wonders what the sentence would have been had the judge been aware that the maximum confinement was only 11 months.

4.  The applicant states that his wife was threatened and forced to make a statement against her will and that when she informed the prosecuting attorney “she was being threatened by her chain of command and being coerced” he did nothing. 

5.  He also argues that the court-martial “lacked jurisdiction.” 

6.  The applicant acknowledges that what he did was wrong and that he is truly sorry.  He states that he served for nearly 10 years without any problems but that all changed when he arrived at Fort Carson, Colorado with a newborn son.  He states that his son had respiratory problems that were made worse by the altitude and that the stress of his son’s condition and “a bad marriage” ended his career.  

7.  He states that he and his wife divorced in 1999 but reconciled in 2000 and are now married again.  His son is strong and healthy.  He states that since “this unfortunate incident” he has “not fallen by the way side” and is a productive citizen, with a full time job, and is attending college.  He states that he would just like to have another chance at his career and not be “forced to pay for a terrible mistake for the rest of [his] life.”

8.  The applicant provides extracts from the appeal that was submitted as part of his general court-martial action.  He also submits documents confirming his employment and college attendance.

CONSIDERATION OF EVIDENCE: 

1.  The arguments raised by the applicant regarding the legality of his court-martial have already been adjudicated and found to be without merit by the United States Court of Appeals for the Armed Forces.  Additionally, the Army Board for Correction of Military Records is not empowered to disturb the finality of a general court-martial.  It can, however, evaluate the sentence resulting from the court-martial as a matter of clemency.  As such, the Board will address the issue of clemency, but not the issues raised by the applicant concerning the legality of the court-martial action, which has already been adjudicated via the appropriate avenue.

2.  Records available to the Board indicate that the applicant entered active duty on 21 June 1989.  He was trained as a personnel specialist and promoted to pay grade E-6 in April 1998.  His performance evaluation reports, prior to the report ending in July 1999, were complimentary and indicated that the applicant was performing his duties in an acceptable manner.  He had been awarded two Army Commendation Medals, two Army Achievement Medals, and three awards of the Army Good Conduct Medal.

3.  In July 1998, while assigned to a unit in Germany, the applicant married another service member.  A son was born to the marriage in October 1998 and in December 1998 the applicant and his spouse were assigned to Fort Carson, Colorado.

4.  Information contained in the applicant’s Record of Trial indicates that in January 1999, while on leave in Kansas, the applicant was involved in a domestic dispute with his spouse which apparently resulted in a charge of “battery domestic violence.”  It is unclear, from documents available to the Board, what the final disposition of the charge was, but information contained in his court-martial record notes that he was released on probation and that the military was not aware of the incident until the applicant’s court-martial action.

5.  On 7 August 1999 the applicant was involved in a second domestic dispute with his wife at their off-post residence in Colorado.  The applicant was told by his unit commander not to have any contact with his spouse or her family.  On 
11 August 1999 he pled guilty to the misdemeanor offense of third degree assault in a hearing before the 4th Judicial District of Colorado and was sentenced to two years probation.  Disregarding his commander and the provisions of his probation, the applicant left the state of Colorado on 16 August 1999 and traveled to Kansas where his spouse was then located.  Authorities in Kansas apprehended him on 17 August 1999.

6.  As a result of previously pending charges associated with prior incidents in April and July 1999, the applicant was placed in pre-trial confinement.

7.  Court-martial charges were ultimately preferred on 27 September 1999.  The charges, of which he was convicted, included three counts of failing to go to his appointed place of duty on 15 and 16 April 1999 and 27 July 1999, absent without leave from 26 July 1999 to 28 July 1999, disobeying an order on 
16 August 1999 not to leave Fort Carson and to have no contact with his spouse, and unlawfully striking his spouse (another Soldier) on 7 August 1999.

8.  On 10 September 1999 the applicant’s spouse was granted her petition for divorce under an emergency decree from a court in Kansas because of her pending reassignment to Hawaii, apparently under a “threat of life” reassignment.

9.  Although the applicant did request to be discharged in lieu of trial by court-martial, his request was denied.

10.  On 19 October 1999 the applicant was convicted pursuant to his pleas by a general court-martial at Fort Carson, Colorado.  His sentence included reduction to pay grade E-1, forfeiture of all pay and allowances, 6 months confinement (with credit for the 63 days he had already served in military confinement), and a bad conduct discharge.  The confinement portion of the sentence was part of a pre-trial agreement.

11.  The sentence was approved on 12 January 2000.  On 12 April 2001 the United States Army Court of Criminal Appeals affirmed the sentence.  On 
24 October 2001 the United States Court of Appeals for the Armed Forces denied the applicant’s petition for grant of review.  On 27 June 2002 the court-martial action, having been affirmed, the bad conduct discharge was ordered to be executed.

12.  On 6 September 2002 the applicant was discharged as a result of the court-martial action.  He was issued a Bad Conduct Discharge Certificate.  His RE Code is reflected as “4” on his separation document.

13.  Documents provided by the applicant indicate that in March 2001 he was selected to attend “Safeguard Services, Inc’s first set of Manager Training classes” which was to be held on Tuesday evenings commencing on 13 March 2001 and concluding on 3 April 2001.  Another document notes that commencing on 23 October 2002 he was employed by a company called “Technimark” as a team member.  His performance evaluation report, ending on 

23 January 2003, noted that the applicant cooperates well, that he is “dependable except getting to his machine on time in the mornings,” does a great job, but is “reluctant to ask for help.”  Ultimately, the evaluation noted that “other than…getting to his machine on time in the morning, he does a very good job.”  A computer generated document, printed on 13 September 2003, appears to indicate that the applicant was enrolled in five entry-level college classes at Fayetteville Technical Community College.

14.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210, then in effect, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  That chapter included a list of armed forces RE codes, including RA RE codes.  It notes that RE-4 applies to those individuals who were ineligible for reenlistment at the time of their last separation from active duty, including individuals who received punitive discharges as a result of court-martial actions.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.  Information provided by the applicant, in the form of his performance evaluation report, indicates that even now he continues to have problems arriving at his place of duty when required.

2.  Although the applicant has provided evidence, which indicates that he is gainfully employed, and attending college classes, neither is sufficiently compelling to warrant clemency as a matter of equity in this case.

3.  The character of the applicant’s separation was appropriate considering his senior grade and length of service at the time he committed the offenses which resulted in the court-martial action.  

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JNS___  __MMB _  __PHM __  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 for correction of the records of the individual concerned.

		_____John N. Slone______
		        CHAIRPERSON

INDEX

CASE ID	AR2003092613	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040311	
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.	110.00	
2.		
3.		
4.		
5.		
6.