bobdina
07-09-2009, 08:15 PM
After 9 years of wrongful imprisonment, rejoining the Corps is a new struggle Road
to
redemption
By Dan Lamothe
dlamothe@militarytimes.com
For nearly 10 years, Staff Sgt. Brian Foster stared at the same concrete prison walls after being convicted on a bogus rape charge. It was three short steps to his toilet, he said, and 50 to the chow hall.
Foster, 35, travels much farther now, but he said he still doesn’t feel free.
With his conviction overturned, the military policeman is in the process of putting his life back together. Pinned as a staff sergeant June 26, he received $275,000 in back pay (minus about $90,000 in taxes) on July 1, he said.
He recently re-enlisted, embracing the Corps that court-martialed him. He also married a woman May 27, with whom he said he fell in love with before his incarceration.
He has been cleared by the Corps to retire with full benefits if he serves out his next contract.
Still, problems persist.
Released in February from the U.S. Disciplinary Barracks at Fort Leavenworth, Kan., and assigned to Mobilization Command in Kansas City, Mo., Foster said he has been told by officers overseeing his reinstatement that he will not receive tens of thousands of dollars in retroactive allowances he thought he’d receive, including commuted rations, Basic Allowance for Housing and family separation pay. Additionally, Foster said he has been warned not to speak out pub­licly about his situation without permission, with several MobCom officers telling him it could be con­sidered a challenge to authority and lead to court-martial. The handling of the ordeal by his com­mand has angered him, even as he continues to put faith in the Corps as an institution.
“To me, they’re still treating me as a prisoner,” he said of MobCom officials. “I will feel that way until the day that they fully restore me with my rank, my pay, my privi­leges and my property that was taken from me.” MobCom says that’s not the case. The unit’s leadership meets weekly specifically to work on Foster ’s problems and has waded through a variety of issues that had little precedent, said MobCom spokes­man Maj. Winston Jimenez. A vari­ety of decisions, including whether Foster will receive retroactive allowances, are “still being worked out with higher headquarters,” MobCom officials said. Foster hasn’t been warned not to speak with the media but ordered to use Marine public affairs when doing so ensure the release of a “full and accurate message,” Jimenez said.
“We understand he went through a lot,” Jimenez said. “We’re trying to do everything we can to assist him.” Foster said his response is sim­ple: How long will it take?
Seeking absolution
The past is ugly: Foster was sen­tenced in December 1999 to 17 years’ imprisonment after being convicted on two counts of aggra­vated assault, one count of rape and one count of making threats, all against his then-estranged wife. But the conviction was flawed, the U.S. Navy-Marine Corps Court of Criminal Appeals decided Feb. 17, more than nine years after Foster initially appealed the decision. The appeals court found that Foster was convicted follow­ing “a muddled, hearsay-based case” that included a variety of errors by the judge, prosecutor, defense attorney and, eventually, the appellate process.
“It is clear to this court that the prosecution attempted to bootstrap a rape conviction atop several instances of assaultive conduct,” the court wrote. “We are unable to con­clude that the appellant is guilty of rape beyond a reasonable doubt. To the contrary, we hold that his con­viction of rape was factually insuffi­cient and was obtained as the result of other errors.” With that as the background, Foster reported to MobCom on Feb. 20 with little more than the shirt on his back.Several Marines have gone out of their way to help Foster find nor­malcy, even as the system slowly comes to decisions on Foster ’s future. They’ve taken him out for steak, helped him sift through paperwork and served as a sound­ing board as he’s grown increasing­ly frustrated with the process to “make me whole,” he said.
“I’m not bashing all Marines here; I need to be clear with that,” he said. “I’m just disappointed with my unit and the way they’ve taken care of me.” Still, the Corps has moved to help Foster in several ways.On June 3 — more than three months after the conviction was overturned — he received his first paycheck in years with sergeant’s pay from the Defense Finance Accounting Service, he said, essentially doubling the $1,400 a month he was receiving. Busted to a private after his conviction, he had worn his sergeant’s stripes for months following his release while waiting for his E-5 pay grade to be reinstated. The Corps also moved in June to promote him to staff sergeant retroactively to April 1, 2000, net­ting him a large pot of money. MobCom declined to say how much he will receive, but Foster said he received a one-time payout of about $275,000 before taxes from DFAS, which is consistent with a Marine Corps Times analy­sis of basic pay tables for the past 10 years. About $90,000 of the payout went to taxes, Foster said, but he could eventually recoup some of that from the IRS. Marine officials also have dis­cussed with Foster a three-year re-enlistment and a permanent change of station in August to Marine Corps Base Quantico, Va., where he would continue to serve as a military policeman. If he completes the tour, he’d be eligible to retire as a staff sergeant in October 2012, as the Corps’ rules dictate that any Marine who is denied re-enlistment after 18 years of service will be granted “enlisted sanctuary” and be allowed to remain on active duty until they qualify for retirement, MobCom officials said.
The road ahead Even with his status as a staff noncommissioned officer now guaranteed, Foster still has other issues to sort out.
He is still waiting to receive numerous uniform items that were promised to him in a new seabag, he said. In fact, with a PCS planned in a few weeks, he’s worried that he won’t be able to report to Security Battalion at Quantico in his Alpha uniform, as tradition dictates.
“It’s frustrating,” Foster said. “You’re telling me that recruits are coming to the depot and they’re not getting their Alpha blouse, or their Charlie pants?” There are also career issues to deal with. Foster likely would have been eligible for promotion to gunnery sergeant in 2005, said Maj. Shawn Haney, a spokes­woman for Manpower and Reserve Affairs. Foster said his MobCom first sergeant also told him that he would have been eligi­ble for selection to first sergeant this year, but the Corps isn’t authorized to promote him — even through a remedial board — because he has no track record as a staff NCO, Haney said.To reach gunny, Foster will need to petition the Board for Correc­tion of Naval Records,which was created to “provide a method for correction of errors or removal of injustices”rom the service records of current and former Marines and sailors, according to BCNR’s Web site. It is considered the highest level of administrative review within the Navy Depart­ment, with athree-member panel drawn of about 50 civil servants reviewing cases. Each case takes an average of six months, Navy officials said. By law, service members are not allowed to sit on the board.
The need to go through the board frustrates Foster, who said he can see himself serving well beyond 20 years if things are squared away. “I was hoping that when I checked out of [MobCom], I’d be able to just go back to being a Marine,” he said. “I am just per­plexed why the Marine Corps can’t do this when I have been able to accomplish so much on my own.” Foster also wants all the allowances, such as BAH, that he didn’t receive while imprisoned, but fears that the Corps will say that because he was housed and fed by the military while impris­oned, he doesn’t rate them. For their part, MobCom officials said the uniforms stand as a good example of the unit trying to do right by Foster. Even with a possi­bility in March that Foster could have faced a retrial or a punitive discharge due the original assault charges — they were later dropped
— MobCom moved within days of him arriving to file a request for a new seabag, Jimenez said. To date, Foster has signed for all but nine items, which remain on back order.
“Obviously, when he reports to Quantico, he’ll need to do so in Alphas,” Jimenez said. “We’ll need to focus on that in coming weeks in order to make sure that he can do so.”
The silver lining
Foster has had no easier time playing catch-up in his personal life — but it has been rewarding. On May 27, he married his wife, Briana, whom he first met in 1999 through and introduction by his first sergeant at Camp Pendleton, Calif. At the time, Foster was going through the messy divorce with his ex-wife that eventually included the criminal charges.
The relationship started inno­cently, Foster said. Both of them were new to Southern California and alone much of the time. Even­tually, it blossomed, and they began discussing getting married, believing the flimsy evidence offered in his court-martial would­n’t be enough to land him in prison. “When I was convicted, she was just as devastated as I was,” he said. “She said she would stay with me until the end.” Briana flew to Kansas City to meet Foster two weeks after his release, and in May, he flew to her home in San Francisco, helping her to pack up her possessions. They drove to Reno, Nev., got mar­ried, then moved on to visit his brothers — both former Marines “It was really hard for me to understand that even though I was living in the best country, this could happen to one of its best men,” she said. “He’s definitely worth waiting 10 years for.” The couple is planning to move together with Haley once Foster is reassigned to Quantico. He chose to PCS to Virginia in part because he thought moving to Japan would be too difficult on his family, which also includes two sons, Jacob and Nicholas, who are now in their teens. Foster hasn’t yet been in contact with his sons, and expects that they will continue to live with his ex-wife in another state, he said. With some money finally in hand, however, he plans to pursue visita­tion rights and hopes they’ll fly to Virginia and take trips with him to see Washington, New York and other East Coast attractions.
“It seemed to be a central loca­tion, and it’s exciting,” Foster said. “My sons could come out to visit me and we could see the heart of our country, you know?
to
redemption
By Dan Lamothe
dlamothe@militarytimes.com
For nearly 10 years, Staff Sgt. Brian Foster stared at the same concrete prison walls after being convicted on a bogus rape charge. It was three short steps to his toilet, he said, and 50 to the chow hall.
Foster, 35, travels much farther now, but he said he still doesn’t feel free.
With his conviction overturned, the military policeman is in the process of putting his life back together. Pinned as a staff sergeant June 26, he received $275,000 in back pay (minus about $90,000 in taxes) on July 1, he said.
He recently re-enlisted, embracing the Corps that court-martialed him. He also married a woman May 27, with whom he said he fell in love with before his incarceration.
He has been cleared by the Corps to retire with full benefits if he serves out his next contract.
Still, problems persist.
Released in February from the U.S. Disciplinary Barracks at Fort Leavenworth, Kan., and assigned to Mobilization Command in Kansas City, Mo., Foster said he has been told by officers overseeing his reinstatement that he will not receive tens of thousands of dollars in retroactive allowances he thought he’d receive, including commuted rations, Basic Allowance for Housing and family separation pay. Additionally, Foster said he has been warned not to speak out pub­licly about his situation without permission, with several MobCom officers telling him it could be con­sidered a challenge to authority and lead to court-martial. The handling of the ordeal by his com­mand has angered him, even as he continues to put faith in the Corps as an institution.
“To me, they’re still treating me as a prisoner,” he said of MobCom officials. “I will feel that way until the day that they fully restore me with my rank, my pay, my privi­leges and my property that was taken from me.” MobCom says that’s not the case. The unit’s leadership meets weekly specifically to work on Foster ’s problems and has waded through a variety of issues that had little precedent, said MobCom spokes­man Maj. Winston Jimenez. A vari­ety of decisions, including whether Foster will receive retroactive allowances, are “still being worked out with higher headquarters,” MobCom officials said. Foster hasn’t been warned not to speak with the media but ordered to use Marine public affairs when doing so ensure the release of a “full and accurate message,” Jimenez said.
“We understand he went through a lot,” Jimenez said. “We’re trying to do everything we can to assist him.” Foster said his response is sim­ple: How long will it take?
Seeking absolution
The past is ugly: Foster was sen­tenced in December 1999 to 17 years’ imprisonment after being convicted on two counts of aggra­vated assault, one count of rape and one count of making threats, all against his then-estranged wife. But the conviction was flawed, the U.S. Navy-Marine Corps Court of Criminal Appeals decided Feb. 17, more than nine years after Foster initially appealed the decision. The appeals court found that Foster was convicted follow­ing “a muddled, hearsay-based case” that included a variety of errors by the judge, prosecutor, defense attorney and, eventually, the appellate process.
“It is clear to this court that the prosecution attempted to bootstrap a rape conviction atop several instances of assaultive conduct,” the court wrote. “We are unable to con­clude that the appellant is guilty of rape beyond a reasonable doubt. To the contrary, we hold that his con­viction of rape was factually insuffi­cient and was obtained as the result of other errors.” With that as the background, Foster reported to MobCom on Feb. 20 with little more than the shirt on his back.Several Marines have gone out of their way to help Foster find nor­malcy, even as the system slowly comes to decisions on Foster ’s future. They’ve taken him out for steak, helped him sift through paperwork and served as a sound­ing board as he’s grown increasing­ly frustrated with the process to “make me whole,” he said.
“I’m not bashing all Marines here; I need to be clear with that,” he said. “I’m just disappointed with my unit and the way they’ve taken care of me.” Still, the Corps has moved to help Foster in several ways.On June 3 — more than three months after the conviction was overturned — he received his first paycheck in years with sergeant’s pay from the Defense Finance Accounting Service, he said, essentially doubling the $1,400 a month he was receiving. Busted to a private after his conviction, he had worn his sergeant’s stripes for months following his release while waiting for his E-5 pay grade to be reinstated. The Corps also moved in June to promote him to staff sergeant retroactively to April 1, 2000, net­ting him a large pot of money. MobCom declined to say how much he will receive, but Foster said he received a one-time payout of about $275,000 before taxes from DFAS, which is consistent with a Marine Corps Times analy­sis of basic pay tables for the past 10 years. About $90,000 of the payout went to taxes, Foster said, but he could eventually recoup some of that from the IRS. Marine officials also have dis­cussed with Foster a three-year re-enlistment and a permanent change of station in August to Marine Corps Base Quantico, Va., where he would continue to serve as a military policeman. If he completes the tour, he’d be eligible to retire as a staff sergeant in October 2012, as the Corps’ rules dictate that any Marine who is denied re-enlistment after 18 years of service will be granted “enlisted sanctuary” and be allowed to remain on active duty until they qualify for retirement, MobCom officials said.
The road ahead Even with his status as a staff noncommissioned officer now guaranteed, Foster still has other issues to sort out.
He is still waiting to receive numerous uniform items that were promised to him in a new seabag, he said. In fact, with a PCS planned in a few weeks, he’s worried that he won’t be able to report to Security Battalion at Quantico in his Alpha uniform, as tradition dictates.
“It’s frustrating,” Foster said. “You’re telling me that recruits are coming to the depot and they’re not getting their Alpha blouse, or their Charlie pants?” There are also career issues to deal with. Foster likely would have been eligible for promotion to gunnery sergeant in 2005, said Maj. Shawn Haney, a spokes­woman for Manpower and Reserve Affairs. Foster said his MobCom first sergeant also told him that he would have been eligi­ble for selection to first sergeant this year, but the Corps isn’t authorized to promote him — even through a remedial board — because he has no track record as a staff NCO, Haney said.To reach gunny, Foster will need to petition the Board for Correc­tion of Naval Records,which was created to “provide a method for correction of errors or removal of injustices”rom the service records of current and former Marines and sailors, according to BCNR’s Web site. It is considered the highest level of administrative review within the Navy Depart­ment, with athree-member panel drawn of about 50 civil servants reviewing cases. Each case takes an average of six months, Navy officials said. By law, service members are not allowed to sit on the board.
The need to go through the board frustrates Foster, who said he can see himself serving well beyond 20 years if things are squared away. “I was hoping that when I checked out of [MobCom], I’d be able to just go back to being a Marine,” he said. “I am just per­plexed why the Marine Corps can’t do this when I have been able to accomplish so much on my own.” Foster also wants all the allowances, such as BAH, that he didn’t receive while imprisoned, but fears that the Corps will say that because he was housed and fed by the military while impris­oned, he doesn’t rate them. For their part, MobCom officials said the uniforms stand as a good example of the unit trying to do right by Foster. Even with a possi­bility in March that Foster could have faced a retrial or a punitive discharge due the original assault charges — they were later dropped
— MobCom moved within days of him arriving to file a request for a new seabag, Jimenez said. To date, Foster has signed for all but nine items, which remain on back order.
“Obviously, when he reports to Quantico, he’ll need to do so in Alphas,” Jimenez said. “We’ll need to focus on that in coming weeks in order to make sure that he can do so.”
The silver lining
Foster has had no easier time playing catch-up in his personal life — but it has been rewarding. On May 27, he married his wife, Briana, whom he first met in 1999 through and introduction by his first sergeant at Camp Pendleton, Calif. At the time, Foster was going through the messy divorce with his ex-wife that eventually included the criminal charges.
The relationship started inno­cently, Foster said. Both of them were new to Southern California and alone much of the time. Even­tually, it blossomed, and they began discussing getting married, believing the flimsy evidence offered in his court-martial would­n’t be enough to land him in prison. “When I was convicted, she was just as devastated as I was,” he said. “She said she would stay with me until the end.” Briana flew to Kansas City to meet Foster two weeks after his release, and in May, he flew to her home in San Francisco, helping her to pack up her possessions. They drove to Reno, Nev., got mar­ried, then moved on to visit his brothers — both former Marines “It was really hard for me to understand that even though I was living in the best country, this could happen to one of its best men,” she said. “He’s definitely worth waiting 10 years for.” The couple is planning to move together with Haley once Foster is reassigned to Quantico. He chose to PCS to Virginia in part because he thought moving to Japan would be too difficult on his family, which also includes two sons, Jacob and Nicholas, who are now in their teens. Foster hasn’t yet been in contact with his sons, and expects that they will continue to live with his ex-wife in another state, he said. With some money finally in hand, however, he plans to pursue visita­tion rights and hopes they’ll fly to Virginia and take trips with him to see Washington, New York and other East Coast attractions.
“It seemed to be a central loca­tion, and it’s exciting,” Foster said. “My sons could come out to visit me and we could see the heart of our country, you know?