ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  24 May 2019

	DOCKET NUMBER:  AR20160015280


APPLICANT REQUESTS:  The applicant requests, In effect: 

* correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) show his narrative reason for separation as miscellaneous/general with a separation code of “KND”
* retroactive pay in pay grade E-4 for the period 8 July through 22 October 2004
* the U.S. Army Criminal Investigation Command and other law enforcement agencies be provided updated back ground [check information] to coincide with his upgraded discharge so that he may be able to obtain future opportunities in law enforcement.  

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* Two DD Forms 149 (Application for Correction of Military Record) 
* Additional Comments
* Personnel Statement addressed to the Human Resource Command (HRC) 
* Letter from the Criminal Justice Standards and Training Commission
* Army Discharge Review Board (ADRB) Case Report and Directive)
* Memorandum for Enlistment Board, signed by Lieutenant Colonel (LTC) RTV

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states on 22 September 2014, the ADRB found an irregularity in his case due to improper counsel and circumstances that led to harsh treatment and inequity.  The ADRB upgraded the character of his service to general, under honorable conditions, but failed to upgrade the narrative reason for separation, separation program designator (SPD) code, and the separation authority to coincide with the discharge upgrade.  

3.  The applicant provides additional comments in which he states:

    a.  He is 35 years of age, and he and his wife have five children.  The youngest child is seven and has Cerebral Palsy and Autism.  Since his discharge he has found it hard to progress in life.  He understands that it is a consequence of his actions and he takes full responsibility.  But he is trying to make things right for him and his family.

     b.  He got married very young and soon afterward, his ex-wife became pregnant and things became stressful.  The supply sergeant got injured and he was promoted to private first class so that he could take charge of the supply room.  He clearly stated that he was not ready, he did not feel comfortable doing it.  His ex-wife was going through a high risk pregnancy and that was very hard on him.  His chain of command ordered him to go to the Government Credit Card Class. 

     c.  In July 2002, he went to credit card training.  What was thought to be in-depth training turned out to be only a half day of training.  When the Government Purchase Card (GPC) arrived in the mail, at the unit, the platoon sergeant [a staff sergeant (SSG)] approached him and directed him to take her shopping.  He told her no, but he was counseled by his first [line] supervisor and the first sergeant who told him to follow orders given by the SSG.  

    d.  His ex-wife ended up in the hospital about 1 hour away from the installation.  He drove there every day until his unit authorized him to stay there from Wednesday through Sunday.  On the two days that he worked, the SSG would order him to take her shopping.  At first the purchases were just office supplies, from what he could make out.  Then the unit got orders to deploy to Kuwait and all credit limits were raised.  

     e.  Then he found out others were involved in [making purchases as he was].  He tried to turn his GPC into the billing official.  But, he was told he could not.  The billing official asked him, if he [worked for] the CID (Criminal Investigation Division)?  When he said no.  He was asked to document a fake receipt to account for a 52 inch television and a digital camera.  Those items had been purchased from Best Buy by Sergeant (SGT) B., another credit card holder.  That is when he learned the financial officer and SGT B were involved in illegal purchases with the GPC.

     f.  The SSG kept ordering him to buy things, even though he knew it was wrong.  He did not know who he could trust.  A large number of people were misusing the GPC. 

     g.  He feels he was used as a scape goat, the noncommissioned officers that were involved got to keep their careers.  He was the only one stripped of his rank after following orders from others above his pay grade.  He returned all of the items that were purchased, but he was court-martialed and sent to prison for 1 year.  However, the Post Commander granted him clemency and he only served 5 and a half months.

     h.  He went to prison for his actions and continues to pay [for his mistakes].  He just wants an opportunity to show that his actions were a lesson learned.  He has been denied many jobs, because of the characterization of his service and his finger prints being in the database.  His past is keeping him from providing his family with the life and healthcare they deserve.  

4.  On 26 July 2001, the applicant enlisted in the Regular Army for 3 years.  He held military occupational specialty 92Y (Unit Supply Specialist).  

5.  The CID Report of Investigative Summary shows, on 27 March 2003, a specialist (SPC) reported that she had witnessed the applicant make several unauthorized purchases with his GPC for his personal use.  She reported the applicant told her that if he were questioned by his chain of command, he would inform them the items purchased were for deployed Soldiers within the unit.

6.  The investigation established probable cause to believe the following:

     a.  The applicant committed the offenses of larceny of Government property, conspiracy to commit larceny of Government property, and wrongful disposition of Government property.  When on several occasions, he admitted he conspired with an SPC to purchase various items of merchandise, utilizing his GPC, and providing it to them for their personal use.  Further, the applicant admitted he retained many of the items for his own personal use.  Additionally, the applicant committed the offense of making a false official statement when on various occasions, he signed official purchase documents, indicating his purchases were for official Government use, when he was actually buying the merchandise for personal use.  Furthermore, authorized searches of the applicant’s quarters and privately owned vehicle yielded about 420 items, including the items reported by the SPC.  All items were verified as purchased with the applicant’s GPC and collectively valued at approximately $9,500.00.

     b.  Mrs. ____ committed the offense of receiving stolen property, when she admitted she knowingly possessed Government property in her quarters purchased with the applicant’s GPC.  Further. Mrs. ____ admitted she accompanied the applicant when he purchased several of the items, and even helped pick out what items he purchased.

     c.  Mr. ____ committed the offenses of theft and conspiracy to commit theft, when he conspired with SGT ____ to utilize his GPC to purchase a “42’ Mitsubishi television, valued at $1,764.59, which he subsequently took for personal use.  Further, Mr. ____ committed the offense of false statements and false entries, when he knowingly certified funds for SGT ____ GPC, which were spent for other than official Government purposes.

     d.  SGT ____ committed the offenses of larceny of Government property, conspiracy to commit larceny of Government property and wrongful disposition of Government property when on several occasions, he conspired with Mr. ____ to purchase various items of merchandise utilizing his GPC, and providing it to them for their personal use. SGT ____ conspired with SFC to utilize his GPC to purchase a Toshiba laptop computer, valued at $1.629.97, which SFC ____ subsequently took for his personal use.  Further, SGT ___ committed the offense of making a false official statement, when on various occasions, he signed official purchase documents indicating his purchases were for official Government use, when he was actually buying the merchandise for personal use.  Additionally, SGT ____ committed the offense of wrongful appropriation of a Government vehicle, when on 31 January 2003 and 11 February 2003, he knowingly utilized a Government Services Administration (GSA) vehicle, to transport stolen Government property, illegitimately purchased with his GPC from the off-post vendors, to SGT ____ on-post quarters.

     e.  SSG ____ committed the offenses of larceny of Government property and conspiracy to commit larceny of Government property, when she conspired with SPC ___ and SPC ____ to purchase various items of merchandise, utilizing the applicant’s GPC, which he subsequently took to her off-post residence, and retained for her persona l use.  Further, a search of her off-post residence yielded about 90 items. collectively valued at approximately $5,000 was verified as purchased with the applicant’s GPC.  

     f.  SPC ____ committed the offenses of larceny of Government property and conspiracy to commit larceny of Government property, when she admitted she conspired with the applicant and another SPC to purchase various items of merchandise valued at approximately $250 utilizing the applicant’s GPC, which she subsequently took to her off-post residence and retained for her personal use.

     g.  SGT ____ committed the offenses of larceny of Government property and conspiracy to commit larceny of Government property, when he admitted he conspired with SGT ____ to purchase a washing machine, dryer, and Sanyo “32” flat screen television, collectively valued at $1,866.98.  Further, SGT ___ committed the offense of wrongful appropriation of a Government vehicle, when on 1 January 2003 and 
11 February 2003, he knowingly utilized a GSA vehicle to transport stolen Government property illegitimately purchased with SGT ___ GPC, from off-post vendors to SGT ___ on-post quarters.  Additionally, SGT ___ committed the offense of making a false official statement, when on 22 April 2003, he provided a verbal statement he knew, to be false, concerning his knowledge of SGT ___misuse of his GPC.

     h.  SFC ___ committed the offense of receiving stolen property, when he received various items of property, stolen by his wife, SSG ____ and subsequently kept them for personal use.

     i.  SSG ____ committed the offenses of larceny of Government property and conspiracy to commit larceny of Government property, when on several occasions, she accompanied her husband on shopping trips, where he used his GPC to purchase various items that were subsequently kept for personal use.
     j.  SFC ___ committed the offenses of larceny of Government property and conspiracy to commit larceny of Government property, when on 5 February 2003, he conspired with SGT ___ to purchase a Toshiba computer with SGT ____ GPC, which SFC ___ subsequently took.  SFC ___ deployed in support of Operation Iraqi Freedom, and informed his chain of command the computer was his personal property.  Later, after learning SGT ___ was cooperating with law enforcement, SFC___ took the computer to his commander and requested it be added to the unit's property book.

     k.  Mr. ____ committed the offense of larceny of Government property and conspiracy to commit larceny of Government property when he conspired with SGT ___to purchase a Play Station 2, a digital camera, computer speakers, and Play Station 2 video games with SGT ___ GPC, that Mr. ____ subsequently kept for personal use.

7.  General Court-Martial Order (GCMO) Number 1, issued by 9th Army Signal Command Fort Huachuca, dated 23 February 2005, shows the applicant was found guilty of the following charges on 8 July 2004:

      a.  Violation of Article 81, UCMJ, conspiring with other Soldiers to commit larceny (020901 and 030430).

      b.  Violation of Article 107, falsifying official records on divers occasions (020901-030430).

      c.  Six specifications of violation of Article 121, UCMJ for wrongfully appropriating property of a value of $3,568 (030409) and five specifications of stealing US property of a value of: 

* $541.07 (021216) 
* $452.50 (021216) 
* $452.50 (030204)
* $727.89 (030312) 
* $199 (021224)
* $500 or less (021114-030326).

8.  The court sentenced him to reduction to pay grade E-1, a fine of $3,500 and to serve an additional 12 months in confinement, if the fine was not paid at the time the GCMO approved the sentence; a forfeiture of all pay and allowances, confinement for 
12 months, and the issuance of a bad conduct discharge.

9.  The findings of guilty was approved.  General Court-Martial Order 1 shows only so much of the sentence as provided for reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for 6 months and 14 days was approved and executed.  The applicant’s post trial request for discharge pursuant to the provisions of chapter 10, Army Regulation 635-200, was approved on 21 December 2004, for issuance of an under other than honorable conditions (UOTHC) discharge.

10.  On 21 January 2005, the applicant was discharged accordingly.  The complete facts and circumstances surrounding the applicant’s discharge process are not available for review with this case.  He completed 3 years and 9 days of active honorable service and he had lost time from 8 July through 22 December 2004.  His DD Form 214 that was prepared at the time of separation shows:

* (Grade, Rate, or Rank) “PVT” and (Pay Grade) “E-1”
* (Separation Code) “KFS” 
* (Reentry Code) “4”
* (Character of Service) Under Other Than Honorable Conditions
* (Separation Authority) AR 635-200, chapter 10
* (Narrative Reason for Separation) “In Lieu of Trial by Court-Martial”
* (Dates of Lost Time During This Period) 20040708 - 2041222

11.  On 22 September 2014, in a personal appearance, in Washington, D.C., the ADRB examined his record of service, and after hearing his testimony, the ADRB determined his characterization of service was too harsh based on the circumstances surrounding his discharge.  The court-martial charges did not warrant the severity of the punishment imposed.  

   a.  The ADRB voted to grant relief in the form of an upgrade of his characterization of service to general, under honorable conditions.  This entails the restoration of his rank to SPC/E-4.  The ADRB determined the reason for discharge was proper and equitable and voted not to change it.  

   b.  The applicant was issued a DD Form 214 that shows the following new entries in:

* (Grade, Rate, or Rank) SPC and (Pay Grade) E-4
* (Character of Service) Under Honorable Conditions (General)

12.  The applicant contends the separation and reentry codes that corresponds with the narrative reason for discharge should be changed.

   a.  He was separated under the provisions of chapter 10, AR 635-200 with a UOTHC [upgraded to a general] discharge.  The narrative reason specified by Army Regulations for a discharge under this paragraph is "In Lieu of Trial by Court-Martial," and the separation code is "KFS."  
   
   b. Soldiers being processed for separation are assigned reentry codes based on their service records or the reason for discharge.  AR 635-5-1 and the SPD Code/RE Code Cross Reference Table show an RE code of 4 is commensurate to his SPD code.  An RE code of 4 cannot be waived and the applicant is no longer eligible for reenlistment. 

      c.  AR 635-5 dictates that entry of the narrative reason for separation, entered in block 28 and separation code, entered in block 26 of the form, will be exactly as listed in AR 635-5-1.  The regulation further stipulates that no deviation is authorized.  There is no provision for any other reason to be entered under this regulation.

13.  The applicant provides the following documents in support of his request:

      a.  Letter addressed to HRC with a courtesy copy provided to this Board, in which he states his narrative reason for separation, and reentry codes are incorrect and he desires that the Board change them to coincide with his upgraded discharge.  The ADRB found that he did not receive proper counsel and his punishment was harsh and inequitable.  

      b.  Letter from the Criminal Justice Standards and Training Commission which shows he received a passing score to enter a law enforcement basic recruit training program.

      c.  Memorandum from LTC RTV who states he was the applicant’s commander and he strongly recommends allowing the applicant back into the Army.  He observed the applicant when the applicant served in the Army.  He believes the applicant was misled and pressured into the situation [that led to his discharge] by his direct supervisor.  His military service was exemplary before and after the court-martial.  The applicant has served his punishment and he should be given a second chance to serve his country.  The applicant’s integrity, competence, and professionalism were never in question.  The LTC states he has remained in contact with the applicant and believes the applicant would be an asset to the Army, due to his drive and determination.  The applicant has his highest personal and professional recommendation.  

14.  In regards to the applicant’s request to provide information to agencies on his behalf, it is not a practice of this Board to provide information to law enforcement agencies concerning applicant’s records.  He may provide information concerning his record by writing to the U.S Army Crime Records Center, US Army Criminal Investigation Command, ATTN:  CICR-FP, 27130 Telegraph Road, Quantico, 
VA 22134. 

15.  The applicant contends the ADRB determined that he had improper counsel; however, the ADRB determined, “his characterization of service was too harsh based on the circumstances surrounding his discharge.”  “The court-martial charges did not warrant the severity of the punishment imposed,” therefore, that board upgraded his characterization of service.  But his narrative reason remained the same, because the reason for discharge remained unchanged.  The applicant was determined to have illegally obtained or helped obtain 420 items that were verified as purchased with his GPC and collectively valued at approximately $9,500.  This was grand theft or grand larceny, which equates to a felony.

16.  In reaching its determination, the Board can consider the applicant's petition, his service record, his statements, and character reference in light of the published Department of Defense guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

1.  The Board carefully considered the applicant’s request, his statement, the evidence in the records and published DoD guidance for consideration of discharge upgrade requests.  The Board discussed the Court Martial proceedings and the ADRB upgrade of the applicant’s discharge, in light of the published DoD guidance, and determined that no further change to the applicant’s record was warranted.  The Board noted the ADRB’s restoration of the applicant’s rank at separation, but also forfeiture of all pay and allowances as imposed by the court martial.  The Board did determine that it would be appropriate to forward the applicant’s previously upgraded discharge to the U.S Army Crime Records Center.

2.  After review of the application and supporting documents, the Board determined that partial relief was warranted.

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:X	:X	:X	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the applicant’s DD Form 214 for the period of service ending 21 January 2005 and reflecting an Under Honorable Conditions (General) discharge be forwarded to the U. S Army Crime Records Center. 

 

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to change of the narrative reason, SPD and retroactive pay as a Specialist/E-4.


	 
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.


ADMINISTRATIVE NOTE(S):

Not Applicable


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

3.  Paragraph 3-7a provides that 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.

4.  Paragraph 3-7b provides that 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.

5.  The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "KFS" will be assigned an RE Code of 4.

6.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  

	a.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  

	b.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.


ABCMR Record of Proceedings (cont)	 AR20160015280


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