BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160001277 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160001277 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________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. BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160001277 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 correction of a DD Form 458 (Charge Sheet). 2. The applicant states he is a military prisoner being housed in the McKean Federal Correctional Institution, Bradford, PA. The United States Court of Criminal Appeals (CCA) reviewed his case (Army 20110495) on 11 April 2013 and found the charges were inaccurate. However, the U.S. Army has not updated or corrected the DD Form 458 to accurately reflect the findings of the CCA. a. He states the DD Form 458 shows he was charged with violation of the Uniform Code of Military Justice (UCMJ): * Article 94 (Creating a disturbance; mutiny) * Article 90 (Disobeying a command) * Article 108 (Willfully damaging military property) * Article 128 (Assaulting a law enforcement officer) b. He also states the CCA determined: * Charge I (Article 94) is inaccurate and should only indicate "mutiny" (the specification of "creating a disturbance" is misleading) * Charge III (Article 90) was dismissed by the CCA judge and should no longer exist * Charge IV (Article 108) is written as "damaging military property" (the specification was "downgraded" and it is now inaccurate as written) * Charge V (Article 128), he was never charged with an assault on a law enforcement officer; he was charged with "assault consummated by a battery" c. He states the CCA opinion shows "assault consummated by a battery" was "the natural and probable consequence of appellant's direct participation in the barricade and defense of the special housing unit in violation of Article 94." He states he did not physically perform the action; it was because he was found guilty of mutiny. The importance of correcting Charge V (Article 128) is in the event he is released from prison and is subsequently stopped by a law enforcement officer, he will be treated differently. He adds, in fact, he was only helping the injured prison guard; however, the prison guards treat him differently because of the charge. d. He concludes by stating it is important that his record correctly and accurately reflect the actual events and charges based on the findings of the CCA when his case comes before the Army Clemency and Parole Board. 3. The applicant provides a self-authored statement (summarized above), pre-trial documents, the CCA decision, clemency packets for the Secretary of the Army, and the President of the United States, and his Sentence Monitoring Computation Data. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 9 October 2003 for a period of 3 years. 2. A review of the applicant's military personnel record failed to reveal a copy of a charge sheet or court-martial orders. 3. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), as corrected by a DD Form 215 (Correction to DD Form 214), shows he entered active duty this period on 9 October 2003 and he was dishonorably discharged on 30 April 2010 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial (other). He had completed 1 year, 5 months, and 29 days of net active service this period. It also shows in: * item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): Army Commendation Medal, National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War of Terrorism Service Medal, Army Service Ribbon, and Overseas Service Ribbon * item 18 (Remarks), he served in – * Germany from 5 January through 24 February 2004 * Iraq from 25 February through 15 July 2004 * Germany from 16 July 2004 through 24 February 2006 * item 29 (Dates of Time Lost During This Period) – * absent without leave (AWOL) – 8 April through 12 April 2005 * Confinement – 13 April 2005 through 30 April 2010 4. The applicant provides the following documents. a. A report of investigation with enclosures (i.e., statements and translations), two pre-trial confinement memoranda, and extracts of testimony, which are not pertinent to the applicant's specific request; therefore, are not summarized. b. CCA (United States v. Charles M. S____ [Applicant], Army 20110495, Opinion of the Court, dated 11 April 2013, shows contrary to the applicant's pleas, a military judge, sitting as a general court-martial, convicted the applicant of willful disobedience of a lawful order, mutiny, damaging military property, three specifications of assault consummated by a battery, and kidnapping in violation of Articles 90, 94, 108, 128, and 134, UCMJ. The military judge sentenced the applicant to confinement for five years. The convening authority disapproved the finding of guilty to kidnapping and approved the remaining findings of guilty, and approved only so much of the sentence as extends to confinement for two years. (1) The case was before the CCA for review under Article 66, UCMJ, and the applicant's appeal based on an error that the evidence was legally and factually insufficient to support his convictions, and also a number of issues he raised. (2) The CCA agreed with the applicant, in part, and found the evidence insufficient to support his conviction for willful disobedience, aspects of the mutiny alleged, aspects of the damaging military property charge, and two of the assaults, but otherwise found the evidence sufficient to establish guilt for what remained. (3) The CCA opinion, in pertinent part, shows: (a) "The Specification of Charge I, Article 94, UCMJ, alleged the appellant, 'with intent to usurp and override lawful military authority, did, …create a disturbance by attacking Private First Class X, barricading himself in the Special Housing Unit West of the United States Disciplinary Barracks, and exhorting others to join him in defiance of lawful military authority." (b) "The Specification of Charge IV, Article 108, UCMJ, alleged the appellant, did, …willfully damage by breaking apart furniture and recreation equipment, by flooding the Special Housing Unit floor with water, by defacing the windows of the Special Housing Unit, and by throwing objects at the video monitoring equipment, military property of the United States, the amount of said damage being in excess of $500." (4) The CCA concluded: "On considerate of the entire record, the parties' briefs, oral argument, and those matters personally raised by the appellant pursuant to G____, the findings of guilty of Specifications 1 and 2 of Charge V, and Charge III and its Specification, are set aside and dismissed. In addition, the court finds, in relation to the Specification of Charge I, only so much of the finding of guilty that provides appellant 'a person in the custody of the armed forces serving a sentence imposed by a court-martial, with intent to usurp and override lawful military authority, did, at Fort Leavenworth, Kansas, on or about 12 August 2010, create a disturbance by barricading himself in the Special Housing Unit West of the United States Disciplinary Barracks' is affirmed; and in relation to the Specification of Charge IV, we amend and affirm only so much of the finding of guilty that provides appellant 'a person in the custody of the armed forces serving a sentence imposed by a court-martial, did, at Fort Leavenworth, Kansas, on or about 12 August 2010, without proper authority, willfully damage by throwing objects at the video monitoring equipment, military property of the United States, the amount of said damage being less than $500.' The remaining findings of guilty are affirmed." (5) The CCA noted the charges and specifications properly alleged the essential elements of the offenses. It also noted that he was ably defended at the court-martial by counsel who understood what the government must prove and counsel raised this to the attention of the military judge on more than one occasion. (6) The CCA affirmed the sentence as approved by the convening authority. All rights, privileges, and property, of which the applicant was deprived by virtue of the findings of guilty being set aside by this decision were ordered restored. c. Applicant provides a Clemency Packet for the Secretary of the Army under Article 74, UCMJ, dated 25 October 2013, with supporting documents. A copy of the Secretary's decision was not provided by the applicant. d. Applicant provides a Clemency Packet for the President of the United States under the provisions of Part I of Title 23, Code of Federal Regulations, dated "NOW." A copy of the President's decision was not provided. e. Applicant's Update of Records and Petition for Clemency to the Army Clemency and Parole Board, dated 19 December 2014, with supporting documents. It shows, in pertinent part, the applicant pointed out mistakes in his record (that included the investigation and charges) and he requested the findings of the CCA be used as the basis for evaluating his petition. f. Sentence Monitoring Computation Data, as of 5 September 2015, pertaining to the applicant that shows: * Charge 1/Article 80, Attempted Premeditated Murder – 11 April 2005 * Charge 2/Article 86, AWOL – 11 April 2005 * Date Sentenced: 25 February 2006 * Sentence Imposed/Time to Serve: 23 Years * Charge 1/Article 94, Create Disturbance (Mutiny) – 12 August 2010 * Charge 3/Article 90, Disobey Command – 12 August 2010 * Charge 4/Article 108, Willfully Damage Military Property – 12 August 2010 * Charge 5/Article 128, Assault on a law enforcement officer – 12 August 2010 * Sentence Imposed/Time to Serve: 5 Years * New Sentence Imposed: 2 Years (Court Order Modifying Sentence) * Total Term in Effect: 25 Years * Parole Eligibility: 7 August 2014 * Statutory Release Date: 9 March 2026 * Expiration Full Term Date: 7 April 2030 * Time Served: 10 Years, 5 Months REFERENCES: 1. Department of Defense (DOD) Instruction (DODI) 5505.7 (Titling and Indexing of Subjects of Criminal Investigations in the DOD serves as the authority and criteria for U.S. Army Criminal Investigation Command titling decisions. a. It states that titling ensures investigators can retrieve information in a report of investigation of suspected criminal activity at some future time for law enforcement and security purposes. Whether to title an individual is an operational decision made by investigative officials, rather than a legal determination made by lawyers. Titling or indexing alone does not denote any degree of guilt or innocence. The criteria for titling are a determination that credible information exists that a person may have committed a criminal offense or is otherwise made the object of a criminal investigation. In other words, if there is a reason to investigate, the subject of the investigation should be titled. b. It also directs that judicial or adverse actions shall not be taken solely on the basis of the fact that a person has been titled in an investigation. By implication the DODI does not prohibit consideration of titling in making judicial or administrative decisions, but does prohibit using titling as the sole basis for those decisions. Once an individual has been titled, the only basis to remove a name from the title block of a report is if it involves a case of mistaken identity. 2. DODI 5505.11 (Fingerprint Card and Final Disposition Report Submission Requirements) implements policy, assigns responsibilities, and prescribes procedures for reporting offender criminal history data to the Criminal Justice Information Services Division of the Federal Bureau of Investigation (FBI), by DOD law enforcement organizations for inclusion in the National Crime Information Center (NCIC) criminal history databases. Paragraph 6 (Procedures) shows dispositions that are exculpatory in nature (e.g., dismissal of charges, acquittal) shall also be filed. 3. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends the charge sheet that was the basis for his conviction by general court-martial should be corrected to ensure it accurately reflects the actual charges and specifications based on the findings of the CCA when his case comes before the Army Clemency and Parole Board. 2. The record (i.e., charge sheet) under review is not filed in the applicant's Army Military Human Resource Record nor his Official Military Personnel File, and a copy is not available for review by the ABCMR. 3. Based on information provided by the applicant, it appears he was properly identified at the time he was charged for the offenses in question and the investigation revealed he did commit the offenses for which charged. In addition, he was convicted by general court-martial. Thus, there appears to be no case of mistaken identity in this case. In addition, based upon promulgation of the Opinion of the CCA issued on 11 April 2013, the records pertaining to the case have been effectively corrected/amended to reflect the actions taken and the disposition of his case. As such, there is no need to change the original charge sheet. 4. The government has an interest in maintaining the records in question. The applicant has not shown through the evidence submitted with his application or the evidence of record why the criminal records in question should not remain a matter of record. 5. Dispositions that are exculpatory in nature (e.g., dismissal and/or amendment of charges) are on file. Thus, this updated/corrected information is available to the Army Clemency and Parole Board. Additionally, the applicant may contact appropriate law enforcement agencies to ensure any available official records of exculpatory information are also filed in the NCIS database. 6. In view of the foregoing, there does not appear to be a basis for changing the requested records/criminal history data from the Department of the Army or FBI records. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001277 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001277 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2