IN THE CASE OF: BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150014602 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 IN THE CASE OF: BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150014602 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. IN THE CASE OF: BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150014602 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: The applicant defers his request and evidence to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests clemency and the upgrade of the applicant's bad conduct discharge (BCD) to an honorable character of service. In the alternative, counsel requests an upgrade to general under honorable conditions. 2. Counsel states, in effect: a. Background. (1) The applicant served for 15 years on active duty, and had reached the grade of staff sergeant (SSG)/E-6 when he was placed on orders for Korea. He is a Veteran of Operation Desert Storm and the Bosnia conflict. During his service in Korea, he made some poor decisions that resulted in charges for larceny of government computers and falsifying documents. (2) He accepted responsibility for his actions, and pled guilty to the allegations. On 23 May 2002, a judge tried his case in a general court-martial. He was sentenced to 3 years of confinement, forfeiture of all pay and allowances, reduction to private (PV1)/E-1, and a BCD. By agreement, the general court-martial convening authority (GCMCA) reduced his sentence to 17 months. On appeal, the Army Court of Criminal Appeals (ACCA) dismissed specification 3 of charge III because there was no evidence the computer in question was worth $2,600. [Sic, the court did not dismiss specification 3; instead, the court amended specification 1 because it found the applicant's guilty plea was improvident. During the trial, the value of the computer, at the time it was stolen, came into question. The court determined the military judge had not properly resolved this issue prior to accepting the applicant's guilty plea. Based on this, the specification was revised so that the phrase "some value" replaced the stated value of $2,650.] However, the ACCA did not give the applicant any relief on his sentence based on this change. The applicant successfully completed his adjudged sentence and returned to a productive life in the civilian community. (3) Since that time, the applicant has made a concerted and deliberate effort to put his life back in place. He has spent most of the past 8 years as a contractor in Afghanistan. He continued his service to the men and women in uniform, most of whom are members of the U.S. Army. He enjoyed being in the Army, and since his separation he has turned his life around and learned from his past mistakes. b. Discussion. (1) A review of the record of trial demonstrates the remorse he felt, and his recognition of his selfishness at the time of the incident (emphasis in original). During sentencing, he stated, "I was thinking about [applicant]; I was thinking about myself and not about the U.S. government." He further remarked that "none of his actions were worth it" and his actions erased almost 15 years of honorable service. (2) In reading the transcript, it is evident the applicant felt a sense of shock and disbelief at the recognition he committed the offenses charged, and his remarks are telling. It is also clear from his discussion with his defense counsel during sentencing that the trial had a tremendous impact, and has carried him since that time. He demonstrated his effort to turn his life around by returning to serve as a contractor in Afghanistan, and his performance since his separation. This all serves to confirm the applicant is completely rehabilitated and clemency is warranted. (3) Counsel and the applicant submit ten letters of recommendation to support his petition. All individuals have known the applicant for varying periods of time, and in different capacities. These are significant in that they offer an independent view as to the type of person the applicant has now become. They show him to be a disciplined, selfless individual who has a genuine desire to help others. They further comment on behavior that demonstrates professionalism, motivation, and leadership. In summary, they provide a commentary on an individual who has positively grown and matured since he left the Army. (4) While counsel and the applicant request the Board to consider all letters of recommendation, certain portions of these statements merit specific mention: * Master Sergeant (MSG) TT has known the applicant professionally for 19 years; she offers insight into the circumstances of applicant's misconduct and provides comments regarding his true character * Mr. KM worked closely with the applicant in Afghanistan; he gives a commentary that shows the applicant is mature, religious, and conscientious, all reflective of positive growth * Ms. BA knew the applicant while both were deployed to Afghanistan, and she describes his mentorship as well as his sincere desire to help his colleagues * Ms. BL has known the applicant over 5 years, and details his responsibilities as a civilian contractor; the applicant was trustworthy, professional, and someone who accepted responsibility * Mr. BS, after knowing the applicant for over 4 years, describes the applicant as dedicated, loyal, and hardworking; someone who displayed a desire to help others * Ms. HW, acquainted with the applicant for 8 years, states he is a "hard charger" with a brilliant personality * Mr. MW, after knowing the applicant for 6 years, gives the scope of the applicant's "enormous duties at the time and his outstanding performance," making specific mention of him being a single parent * Mr. LG has known the applicant 7 years and served with him overseas; he notes the applicant's "exemplary behavior" and "would go over and beyond to help you out" * Ms. NR served with the applicant on multiple occasions over a 10 year period; the applicant is "an outstanding mentor and friend" who can work and be professional in any environment * Mr. RC and the applicant have known each other since 2009; he notes the applicant accounted for millions of dollars-worth of lifesaving equipment for Servicemembers stationed in Afghanistan (5) These letters of support offer invaluable insight into the applicant's character now, as compared to 2002. They show he is committed to his duties, and aggressively takes on the role of teacher and mentor. He is a different person from when he was punished in 2002. (6) Counsel asserts sentencing principles merit consideration in this case, and, he argues, they should be viewed as important when determining if clemency should be granted. While military judges routinely take into account sentencing principles when deciding on an appropriate punishment during the trial, counsel contends these same factors should guide the Board's clemency determination. In the applicant's case, the following have been satisfied: * General Deterrence – the applicant was severely punished, and command members were keenly aware of this; the deterrent effect will not be compromised if clemency be granted * Specific Deterrence – he learned from his mistakes; since leaving the Army the applicant has served as a military contractor with enormous responsibilities; his performance has been outstanding * Punishment – he was appropriately punished for his actions; he must live with the stigma of having a Federal conviction on his record; his options and access to a variety of resources are limited * Rehabilitation – he has been rehabilitated for his actions, as affirmed by the character letters; he has grown to become a selfless mentor, strong of character and religious grounding (7) Additional factors meriting consideration: * the applicant's wife was diagnosed with manic-depressive disorder * the applicant has three children, ages 6, 11, and 23 * he includes a self-authored statement that is consistent with the letters of support provided in his behalf c. Based on the foregoing reasons, both counsel and the applicant contend a BCD is no longer appropriate, and clemency in the form of an upgrade to general under honorable conditions or fully honorable is warranted. 3. Counsel provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 17 June 2005 * Record of Trial, dated 23 May 2002, 122 pages * General Court-Martial Convening Authority (GCMCA) action, dated 22 January 2003 * resume for a U.S. Navy Reserve attorney * applicant's self-authored statement * ten letters of support CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 4 January 1988. He served continuously through reenlistments and extensions, and rose to the rank of SSG. 3. While assigned to a unit in Korea, he was tried by a general court-martial. General Court-Martial Order (GCMO) Number 3, dated 22 January 2003, issued by Headquarters, 19th Theater Support Command, shows: a. Five violations of the Uniform Code of Military Justice (UCMJ): * one specification of being absent without leave (AWOL) (Article 86 (AWOL)) – plea: not guilty, finding: not guilty * three specifications of signing false official statements (Article 107 (False Official Statements)) – pleas: guilty, findings: guilty * five specifications of stealing property or cash (Article 121 (Larceny)): * a laptop computer valued at $2,650 – plea: guilty, finding: guilty * two Iomega Zip Drives valued at $307 – plea: not guilty, finding: not guilty * laptop with accessories of a value of $2,766.08 – plea: guilty, finding: guilty * currency in the amount of $7,766.90 – plea: guilty, finding: guilty * currency in the amount of $2,353.55 – plea: guilty, finding: guilty * one specification of submitting a fraudulent claim in the amount of $2,353.55 (Article 132 (Frauds Against the U.S.)) – plea: guilty, finding: guilty * one specification of unlawfully making a false statement under oath (Article 134 (False Swearing)) – plea: guilty, finding: guilty b. The sentence was adjudged on 23 May 2002, and consisted of a BCD, confinement for 3 years, forfeiture of all pay and allowances, reduction to private (PV1)/E-1, and to pay the U.S. a fine of $10,000. c. On 22 January 2003, the GCMCA approved only so much of the sentence as provided for reduction to PV1/E-1, confinement for 17 months, a BCD, and a fine to be paid to the U.S. in the amount of $10,000. So much of the automatic forfeiture of all pay and allowances, required by Article 58b, UCMJ, as provided for $500 pay per month was waived effective 22 January 2003 for a period of 6 months. 4. On 7 October 2004 the U.S. Army Court of Criminal Appeals reviewed his case. a. Regarding the first specification of charge III (stealing a laptop computer valued at $2,650), the court found the applicant's guilty plea to be improvident, and affirmed only that this computer had some value (not $2,650) when it was stolen. The court further affirmed the remaining findings of guilty, as well as the sentence. b. The court went on to correct the wording of the specification for charge IV (submit a fraudulent claim) by removing the word "submit" and replacing it with "make." 5. GCMO Number 57, dated 12 May 2005, issued by Headquarters, U.S. Army Armor Center and Fort Knox, showed, pursuant to Article 66, UCMJ, the court had affirmed the findings of guilty, with the exception of the first specification of charge III (amended as indicated above). The sentence of a BCD, confinement for 17 months, a fine of $10,000 paid to the U.S., and reduction to PV1/E-1 were noted as being finally affirmed. The portion of the sentence pertaining to confinement had been served. As Article 71(c) had been complied with, the BCD was ordered duly executed. 6. The applicant was discharged accordingly on 17 June 2005. His DD Form 214 shows he completed 16 years, 4 months, and 11 days of net active creditable service, with 1 year and 28 days of lost time (from 23 May 2002 to 19 June 2003). a. He was awarded or authorized: * Army Commendation Medal * Army Achievement Medal (5th Award) * Army Good Conduct Medal (4th Award) * Joint Meritorious Unit Award * Valorous Unit Award * Korea Defense Service Medal * National Defense Service Medal (2nd Award) * Southwest Asia Service Medal with three bronze service stars * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Kuwait Liberation Medal – Saudi Arabia * Kuwait Liberation Medal – Government of Kuwait * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) b. The separation authority is Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 3 (Character of Service/Description of Separation). c. The character of service is shown as BCD and the narrative reason for separation is stated as being court-martial, other. 7. Counsel provides: a. The applicant's self-authored statement, which essentially states: * he was released from the Fort Knox confinement facility in June 2003, and returned to his hometown; he obtained employment with Sears and PetSmart until he was hired by a federal contracting company * while working for the federal contracting firm, he was a supply technician, and charged with shipping and receiving equipment coming from and going to locations in Iraq * he remained there until he was recruited by another federal contracting company, with whom he deployed to Iraq * he was in Iraq from September 2004 until September 2005, then went back to Fort Hood, TX * he received a job offer to be a logistics analyst for an infantry division Command Maintenance and Evaluation and Training team * he transferred to Kuwait in September 2006, where he provided functional support to the Central Receiving and Shipping Point, and was responsible for tracking U.S. Army logistical assets worldwide * from January 2008 to February 2010, he worked in Afghanistan doing the same work he had performed in Kuwait * he accepted a job as a logistics specialist in Kandahar, Afghanistan where he was responsible for coordinating "field and inventory different MRAP [Mine-Resistant Ambush-Protected vehicles] variants" * he also assisted in the development, implementation, and evaluation of logistics and property accountability policies, advised key personnel about logistics matters, and oversaw feeder reporting * further, he was accountable for regaining and maintaining property accountability utilizing automated supply systems * he was married to a lieutenant colonel, but they later amicably divorced; he has continued his studies, and has earned an Associate's degree; he is an active member of his church * he has two grandchildren, and is an active part of their lives * he has paid his dues to society and, from the time he was released, has tried to be a model citizen; there is not a day he does not regret his misconduct; he has worked very hard to become the man he is today * what he learned from being incarcerated is how his mistakes reshaped his life, and that there was no easy way out; but no matter how hard it gets, you should always strive to go in the right direction b. Ten letters of support, all of which describe the applicant in highly favorable terms, and collectively affirm his many outstanding qualities. With the exception of MSG TT, all met the applicant after his discharge, and while he was working as a civilian contractor. MSG TT describes her experiences with the applicant, at least initially, in the context of being his subordinate. She later "crossed paths" with him when he was a civilian contractor at Fort Hood. She acknowledges the applicant's "serious lapse in judgment," but asserts he is truly remorseful and "has made every effort to right this wrong." REFERENCES: 1. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 2. AR 635-200 prescribes the policy and procedures for enlisted separations. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. A BCD is issued pursuant only to an approved sentence of a general, or special court-martial that has been empowered to adjudge this discharge. The appellate review must be completed, and the affirmed sentence ordered duly executed. 3. The Manual for Courts-Martial details maximum punishments for each of the punitive articles within the UCMJ: * Article 86 for not more than 3 days – confinement for 1 months and forfeiture of two-thirds pay per month for 1 month * Article 107 – dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years * Article 121 – * military property valued at $500 or less: BCD, forfeiture of all pay and allowances, and confinement for 1 year * military property valued at more than $500: dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years * Article 132 – dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years * Article 134 (False Swearing) – dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years DISCUSSION: 1. The applicant and counsel request an upgrade of the applicant's BCD based on clemency. 2. The evidence of record confirms he was convicted by a general court-martial on 22 May 2002. a. He had been charged with committing multiple offenses punishable under the UCMJ. A punitive discharge was an available punishment for four of the five offenses charged. The type of court-martial convened to adjudicate the charges was appropriate given the gravity of his misconduct. b. The appellate review was completed and, following the correction of errors, the sentence was affirmed and ordered duly executed. His conviction and discharge were effected in accordance with applicable laws and regulations. c. Based on the foregoing, it appears all requirements of law and regulation were met, and his rights were fully protected. 3. The law prohibits any redress of the finality of a court-martial conviction by this Board. The Board is only empowered to change the severity of the sentence imposed in the court-martial process, and then only if clemency is determined to be appropriate. a. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. The review for clemency is focused on the period of active service, and whether an error or injustice occurred with regard to his court-martial. b. In this respect, he provides no evidence of an error or an injustice, or that he was in any way coerced to proffer his pleas of guilty during the court-martial process. 4. Counsel contends the Board should grant clemency and upgrade his discharge because he has accepted responsibility for his actions. The applicant asserts he has changed his ways, and offers numerous letters of support, all of which characterize the applicant as being responsible and selfless in his post-discharge life, except for one who appears to have known him while he was on active duty. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014602 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014602 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2