Is there help for me?

[jinglebobd]

What is the name of your state? TEXAS
I got convicted at General Court Martial in 2002 for Fraud and Larceny of Basic Allowance for Housing (BAH). I claimed I was still married and had sent my family to live in a high BAH area (NY). I was guilty of the charges. I was sentenced to 6 months confinement at Ft Leavenworth (I was a CW2) and a Dismissal from the US Army. To that point, I had served just over 18 1/2 years. Prior to this charge, I had NEVER been introuble with the law as a civilian or as a soldier. I had never gotten a single negative counseling and my NCOER/OER's were outstanding. When called for questioning from the CID, I waived my right to counsel, told the truth, and paid back every dime I was overpaid (just over $16,000). I believe the punishment to have been excessive and that I was made to be an example for the rest of Korea. My question is this: If I had access to many names of other officers that were questioned by CID and not prosecuted or taken to court-martial, do I have any legal ground to stand on that might get me back in uniform? Enlisted personnel are constantly getting convicted and BCD's for this offense while officers are allowed to leave the country, sometimes with a Letter of Reprimand. In my own Bn, a Captain was allowed to come back to Ft Bliss and take a command with the same offense. Also, an enlisted member got a Field Grade Article 15 and came back to Ft Bliss and is still enjoying his military career. In both instances, they were collecting BAH for the States while their wives were living with them in the Barracks. Any help would be appreciated!!

[fozzy2]

It seems doubtful that you would prevail in any appeal on these grounds. The military has vast prosecutorial discretion, and "making an example" of someone is allowed as long as it is done in accordance with the law. The military justice system is designed to promote "order and discipline" and if the military felt that giving you a heavy sentence aided that goal, then so be it. You could look at related avenues, but the chances there may be slim as well. Was the military discriminating on the basis of membership in a constitutionally protected class? (i.e. were the sentences being handed down by race, religion, etc.) Was there undue command influence in your case? Did you have some prior adverse relationship with the judge?

I am assuming that you have exhausted the normal appeals process, and are looking for grounds to file a new appeal.

[jinglebobd]

Texas!! I don't believe there was any discrimination or bad command influence. I believe the trial was fair, but the punishment excessive and unjust. I know that no officers are getting punished. I know that an officer was tried just after I was and didn't get any punishment. In similar circumstances and charges, any officer charged and tried AFTER me should receive the same sentence, is this correct? If it is true that an officer was tried after me and got no punishment, do I have a case? I am looking for any way that I can possibly get back in uniform and serve. I have always been about Service To Country, and I am motivated by the chance to get my retirement. Any ray of light would be worth consideration. Friends have told me to speak to "20/20" and go public, but I am just not looking to disgrace the Army, just want back in any way I can!!

[fozzy2]

In our system of justice every case gets individual attention. Part of this is getting a sentence that is tailored to the circumstances of your crime, if you are convicted. No two crimes are ever identical, hence it is not surprising that two cases might have very different sentences. The law gives judges a range of options when sentencing for particularly that reason. Unless a judge hands down a sentence that literally "shocks the conscience" of the appeals court, the sentence is probably going to stand.

Some people seem to *want* a system where a conviction under a particular statute means automatic and identical sentences. But we aren't there yet. The recent controversy over federal sentencing "guidelines" is a good example of that debate. And even if you appealed your sentence as being unfair, if you "won" most likely what you would get is an adjusted sentence. You would still have the conviction and be ineligible to re-enlist, etc.

To put it another way, if you protested to a judge about other people getting lesser sentences (or even being allowed to walk), the likely response would be "This is about YOU." Just because people in another unit are getting away with violating a reg, for example, that does not mean you get a free pass if caught.