BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20160001006 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: 10 August 2017 DOCKET NUMBER: AR20160001006 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: 10 August 2017 DOCKET NUMBER: AR20160001006 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, in effect, the upgrade of his bad conduct discharge (BCD). 2. The applicant states: a. He enlisted in the military when he was 21 years old. Ever since he was a kid, he always wanted to join the military, and participated in Junior Reserve Officers' Training Corps while still in school. b. He was already married when he enlisted. His goal was to enter the military when he turned 18 years of age, but his wife objected because of the wars that were going on. He finally convinced her in April 2007. After all the training he received, he was sent to Fort Wainwright, Fairbanks, AK, as his first duty station. c. While in Alaska, he met EJF and they became close friends and roommates; they were good battle buddies as well. He brought EJF home during Christmas, and again in July 2008 during block leave. The applicant took EJF under his wing and, when he got on-post housing, he allowed EJF to live there. He also introduced him to his sister-in-law in March 2008. During block leave in July 2008, EJF started dating the applicant's sister-in-law. d. In the beginning of August 2008, when they returned to Alaska, EJF and the applicant's sister-in-law lived with the applicant and his family. On 18 August 2008, EJF asked the applicant's sister-in-law to marry him. A week later, EJF and the applicant were discussing where he (EJF) would live after he married; the applicant suggested EJF and his wife live with him. They came to an agreement that EJF would pay $400 per month. This would help EJF save money and allow him and the applicant's sister-in-law to get a place of their own. e. EJF was to start paying the applicant in September, but that did not happen. Their unit deployed on 4 September 2008, which happened to be the same date as the applicant's fifth wedding anniversary. The applicant did not get the first payment from EJF until November; EJF said he had to pay some bills that had accumulated before he enlisted in the Army. The applicant was fine with this because he was making more money during the deployment. EJF then gave him another payment in March. EJF told him he was having problems with his wife and did not want to give the applicant any more money. The applicant told EJF that as long as he was married, he would have to provide for his wife; EJF became angry and they did not speak for a couple of weeks. f. EJF was one of his four roommates during his deployment to Kuwait. The applicant took rest and recuperation leave in April 2009, returning after two weeks. On his return, he did not see EJF because he had moved to another squad and was participating in a different convoy lineup. Their next encounter was in June. The applicant asked EJF to pay at least what was owed. EJF agreed and asked for a week's time to calculate his debt; the applicant agreed. g. The applicant went on a mission the next day and when he returned 5 days later, he learned EJF was away on a mission. On EJF's return, the applicant asked for the money. EJF got mad, but agreed. He gave the applicant his debit card as well as his pin number and told him to "get about $1,500 worth of stuff or take the money out." EJF said he would pay the balance on 15 June when they were paid. h. The applicant went to the Post Exchange (PX) in Kuwait and bought himself some hygiene items along with a camcorder. All of the items amounted to about $800. He also withdrew $200 from the automated teller machine (ATM) in the PX. He tried to withdraw more funds, but the ATM declined the card. The applicant returned to the dormitory where they stayed and gave the card back to EJF. EJF told him he would call the bank to transfer the rest of the money owed. i. A couple of days later, the applicant went on a mission, and when he returned EJF told him someone had stolen money from his card. The applicant thought EJF was making another excuse as to why he could not pay what was owed. They started arguing; EJF cursed him and walked away. The applicant asserts EJF got upset when he (the applicant) told EJF he was not man enough to support his wife, and because EJF was talking to another girl through email and on the internet (he is now married to this girl). j. Two days later, the first sergeant (1SG) took both the applicant and EJF to the military police (MP) station. The MPs started investigating him for stealing EJF's debit card to purchase items in the PX and taking money from the ATM. The applicant told the MPs he had sent the camcorder to his wife so she could record special occasions. Everyone in the company thought he was a thief, and started deleting him from friend-status on Myspace and Facebook. Only certain Soldiers would talk to him, but many he had thought were his friends turned their backs on him. His 1SG even announced to the company he was untrustworthy and a thief. He received threats of bodily harm and, while that never happened, he would find personal items thrown to the floor. k. He was given legal representation and then sentenced on 16 September. His company redeployed on 4 September. He felt like an outlaw. He could have kept EJF back with him until the court-martial was done, but he pled guilty after EJF told him he would clear everything up with a conference call the day of his trial. EJF was called six times, but never answered the phone. l. The applicant paid EJF $1,000 via money transfer, even though he felt he should not have to do so. He just wanted the court to see he had paid EJF. The applicant was sentenced to 4 months confinement. He served 3 weeks in Kuwait and the rest in South Carolina. He was given 4 days off from his sentence because of the remarks made by his 1SG the unit. m. He felt like he had let his wife and children down. While in the military, he never got into trouble. He tried to give his wife and children a better life and felt the punishment was too harsh. Even the judge commented his case could have easily been resolved with a field grade Article 15 (nonjudicial punishment). The applicant asserts his court-appointed attorney did not act in his best interests, and did not try to show his innocence. However, he could not afford private/outside representation. n. After he was discharged, he and his wife began to argue because he was unable to find a good paying job; they are now separated. He feels this whole incident was a family matter that got out-of-hand; he contends EJF lied. He has not tried to contact EJF since his (the applicant's) court-martial, but he maintains EJF's anger, his divorce, and the fact he believed the applicant informed family members about his infidelities caused him to blame the applicant for doing something he would not have done without EJF's permission. The applicant states that he feels lost and asserts his type of discharge has made things extremely difficult. He requests consideration of his situation and the character reference letters he submits. 3. The applicant provides: * letter of support, dated 14 July 2011 * copy of a DD Form 1173 (Identification and Privilege Card) for NPF (applicant's sister-in-law and former spouse of EJF) * letter from the Army Discharge Review Board (ADRB), dated 17 August 2012 * ADRB Case Report and Directive for ADRB Docket Number AR20120004550, dated 8 August 2012 * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States), dated 23 December 2011 * two DA Forms 31 (Request and Authority for Leave), dated 3 and 30 December 2009, respectively * memorandum, dated 3 December 2009, Subject: Approval of Voluntary Excess Leave * three DA Forms 4187 (Personnel Action), dated 17 November; 2, and 10 December 2009, respectively * memorandum, dated 2 December 2009, Subject: Statement of Acknowledgement of Rights to Individual on Application for Excess Leave * DA Form 4430 (DA Report of Result of Trial), dated 16 September 2009 * DD Form 2707 (Confinement Order), dated 17 September 2009 * U.S. Army Court of Criminal Appeals decision, dated 16 February 2010 * U.S. Court of Appeals for the Armed Forces decision, dated 4 May 2010 * memorandum, undated, Subject: Sexual Assault * letter, dated 13 November 2015, from the applicant to his U.S. Congressional Representative * eight letters of support, dated between September and October 2009 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 24 April 2007. He held military occupational specialty 88M (Motor Transport Operator). Following completion of initial training, his first duty station was Fort Leonard Wood, Missouri. 3. On 22 August 2007, he extended his enlistment by 2 months so he could be reassigned to AK. His official military personnel file (OMPF) does not clearly reflect his date of reassignment to AK, but at some point between August 2007 and July 2008, he arrived on permanent change of station orders to Fort Wainwright, AK. 4. His OMPF also does not show exact dates for his deployment to Kuwait, but in an email dated 29 May 2017, an official with the Defense Finance and Accounting Service (DFAS) confirmed the applicant received Hostile Fire/Imminent Danger Pay and Combat Zone Tax Exclusion (HF/IDP and CZTE) from 1 September 2008 to 30 September 2009. DFAS records showed he deployed to Kuwait. In addition, his OMPF includes an Army Commendation Medal Certificate, dated 9 July 2009, that was awarded for exceptionally meritorious service from 6 September 2008 to 5 September 2009 while a member of Joint Logistical Task Force 57, Kuwait. 5. While in Kuwait, he was tried by a special court-martial empowered to adjudge a BCD. Special Court-Martial Order Number 11, dated 25 November 2009, issued by Third Army, shows the following: a. The applicant was found guilty, consistent with his pleas, on two violations of the Uniform Code of Military Justice (UCMJ), listed on the order as: (1) Article 121 (Larceny), UCMJ, two specifications as follows: * stealing a digital camera, a memory card, hygiene supplies, and a bottle of cologne, valued at more than $500 and the property of the Army and Air Force Exchange System * stealing money valued at less than $500 from the National Bank of Kuwait (2) One specification of Article 123 (Forgery) for forging Private First Class EJF's signature on a credit card transaction. b. Sentence was adjudged on 16 September 2009 and consisted of a BCD, confinement for 4 months, and reduction to private (PV1)/E-1. c. On 25 November 2009, the convening authority approved only so much of the sentence that extended to reduction to PV1, confinement for 110 days, and a BCD. In addition, the automatic forfeiture of two-thirds of all pay was deferred until 1 October 2009, and was then terminated on the date of the convening authority's action. The applicant was credited with 4 days against his total sentence of confinement. 6. On 16 February 2010, the U.S. Army Court of Criminal Appeals affirmed the court's findings of guilty and the sentence, finding they were correct in law and fact. 7. On 4 May 2010, the U.S. Court of Appeals for the Armed Forces denied the applicant's appeal. 8. Special Court-Martial Order Number 53, dated 26 May 2010, issued by Headquarters, U.S. Army Armor Center and Fort Knox, showed the sentence of a BCD, confinement for 110 days, and reduction to PV1/E-1 were 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. 9. The applicant was discharged accordingly on 6 September 2010. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 1 month, and 20 days of net active creditable service, with lost time from 16 September 2009 to 8 December 2009. a. He was awarded or authorized: * National Defense Service Medal * Global War on Terrorism Service Medal * Army Service Ribbon * Driver and Mechanic Badge with Mechanic Component Bar 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. 10. On 23 December 2011, the applicant petitioned the Army Discharge Review Board (ADRB) to upgrade his character of service. On 8 August 2012, the ADRB found no cause for clemency and voted to deny the requested relief. 11. The applicant provides: a. A letter of support from his sister-in-law, Ms. NPC, dated 14 July 2011, along with a photocopy of her dependent identification card. Ms. NPC essentially states: * she married EJF on 18 August 2008 in Fairbanks, AK; they were living with her brother-in-law (the applicant) and had agreed to pay rent * both the applicant and her husband deployed on 4 September 2008; she remained with her sister and family * in April 2009, EJF asked her for a divorce; he also stopped sending her money and was no longer paying the applicant for rent; this caused problems between them * EJF and the applicant were roommates while they were deployed and, since EJF owed the applicant money for rent, EJF let the applicant use his bank card; this is what happened as far as she is concerned b. Eight letters of support from fellow Soldiers and, in some cases, their spouses. All laud the applicant as being a great friend, father, and husband. His fellow Soldiers described him as selfless, respectful, and trustworthy. They also affirmed he had made a bad choice, but would learn from his mistakes. REFERENCES: 1. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record so that it reflects actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 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 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 123 – dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years DISCUSSION: 1. The evidence of record confirms, on 16 September 2009, he was convicted by a special court-martial empowered to adjudge a BCD. a. He had been charged with committing multiple offenses punishable under the UCMJ. A punitive discharge was an available punishment for the 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. 2. The applicant submits letters of support that affirm his qualities as a father, husband, and friend. Additionally, while acknowledging he made a bad choice, he had qualities that would permit him to learn from his mistakes and make better choices in the future. While not insignificant, the evidence submitted by the applicant neither validates his version of events nor offers proof of an error or injustice. 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. 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. The Board is empowered to upgrade the applicant's character of service if it finds compelling evidence indicating clemency is appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001006 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001006 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2