ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 March 2019 DOCKET NUMBER: AR20160016676 APPLICANT REQUESTS: Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the numerous periods of honorable service he completed during his military career, and a personal appearance. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Certification of Military Service 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: a. He never received a DD Form 214 upon his release from confinement, and is requesting that the error or injustice be corrected. b. He arrived in Korea a married man and he was not notified of the final divorce decree until months after he had arrived. During this time there was a BAH [basic allowance for housing] sting and his name was exposed as part of the BAH sting, but he was already making amends for the overpayments he had received. c. Furthermore, his counsel presented evidence of unlawful command influence, because the Commanding General, for whom he worked directly, sent e-mail to senior officers and noncommissioned officers who compromised his case. d. Prior to his transgressions he had been a stellar Soldier for 17 years. He is more than one transgression that was being corrected prior to his discharge proceedings. 3. Additionally, he indicates in a personal statement submitted in his behalf, in in effect, that: a. In approximately October 2003, he was court-martialed in Korea and sentenced to 1 year in confinement and a dishonorable discharge [a bad conduct discharge (BCD)], for BAH fraud. He maintained his innocence, as the error was already rectified as the Military Finance office was deducting a specific amount of money from his pay, prior to the initial investigation. b. When he arrived in Korea, going through a tumultuous divorce. His stateside lawyer notified him of the final divorce decree months after his arrival in Korea. There was a Korea-wide sting on BAH fraud. Military personnel from all ranks were being investigated and charged. Some were discharged, others were fined, and some were allowed to reimburse the Government, remain in the Army, and keep their rank. c. He realizes that each case is weighed on its own merits, he was a senior noncommissioned public affairs officer, assigned to many high profile positions. While that alone does not warrant any particular leniency, he maintains that he would not have been selected for those positions were it not for stellar performance throughout his career. d. Seventeen years of his life were for naught because of a transgression that was being rectified before the start of an investigation. He lost his retirement, and he was not issued a DD Form 214. He cannot apply for Government positions, because he no longer has veteran’s preference. Without a DD Form 214 he is unable to inquire about veterans benefits, particularly healthcare. He rarely went to sick call when he was on active duty. e. His military lawyers filed a claim of unlawful command influence during his court- martial and it was passed off to the appellate level. f. He has earned a master’s degree in education and is in the final phase of his doctoral studies, writing his dissertation. He appeals to the Board, not for sympathy, but for an opportunity to rectify a part of his life. If, he could he would serve his remaining 3 years of active service and earn his retirement. Since that is a pipedream, he would at least like to have his discharge upgraded to reflect the vast majority of his exemplary service, perhaps discovering that he is entitled to veterans benefits. 4. The applicant enlisted in the Regular Army on 26 February 1986. He served honorably from 26 February 1986 through 4 May 2000. His reenlistment contract shows on 5 May 2000, he reenlisted for an indefinite period of service, in the rank of sergeant first class/pay grade E-7. At that time he had completed 14 years, 2 months, and 9 days of active service. 5. General Court-Martial Order (GCMO) Number 3, issued by Headquarters, Eighth U.S. Army, dated 3 March 2004, shows court-martial charges were preferred against the applicant for the following offenses, he: a. Pled guilty and was found guilty of with intent to deceive, signing an official document, to wit: DA Form 5960, which was false in that it listed his status as "married," and listed his spouse as CLR, on 24 June 2002. b. Pled not guilty and was found guilty of with intent to deceive, sign an official document, to wit: DD Form 1561, which was false in that he checked, "I am not divorced or legally separated from my spouse," and checked, "My dependent children are not in the legal custody of another person; which was known by the applicant to be false, on 24 June 2003. c. Pled not guilty and was found guilty of stealing U.S. Currency, military property, of a value of more than $25,000, the property of the U.S. Government, on or about January 1999 and on 11 June 2002. d. Pled not guilty and was found guilty of stealing U.S. Currency, military property, of a value of more than $800, the property of the U.S. Government on or about January 2002 and 9 July 2002. e. Pled not guilty and was found guilty of stealing U.S. Currency, military property, of a value of more than $10,000, the property of the U.S. Government, on or about 1 June 2002 and 1 March 2003. f. Pled guilty and was found guilty of preparing a voucher for presentation for approval or payment, making a claim against the United States in amount of about $2,700 for transportation, per diem, military allowance in lieu of transportation, and dislocation allowance for his "spouse" and two children's move from New York to Illinois, which was false and fraudulent in the amount of $830 in that said dependents did not make the move claimed, which was known by the applicant to be so false and fraudulent, on or about 24 June 2002. 6. On 10 September 2003, the sentence was adjudged. The court sentenced him to confinement for 1 year, reduction to the rank/grade of private/E-1, and a BCD. His sentence was approved and executed except for that portion pertaining to his BCD. 7. General Court-Martial Order 186, dated 21 August 2008, shows that portion of the sentence extending to confinement had been served. Article 71 had been complied with and the BCD was ordered executed. 8. On 18 February 2009, he was discharged under the provisions of chapter 3, Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), as a result of court-martial with a BCD. His DD Form 214 also shows in: * (Net Active Service This Period): 22 02 25 * (Foreign Service): 0004 04 03 * (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) Meritorious Service Medal, Army Commendation Medal (2nd Award), Joint Service Achievement Medal, Army Achievement Medal (5th Award), Army Good Conduct Medal (4th Award), National Defense Service Medal, Global War on Terrorism Service Medal, Korean Defense Service Medal, Humanitarian Service Medal, Noncommissioned Officer Professional Development Ribbon (3rd Award), Army Service Ribbon, Overseas Service Ribbon (2nd Award), Military Outstanding Volunteer Service Medal, Driver and Mechanic Badge – Mechanic, Secretary of Defense Identification Badge * (Remarks) IMMEDIATE REENLISTMENT THIS PERIOD - 19860226 -19890716, 19890617-19920723, 19920724-19960117, 19960118-20000504, 20000505- 20090218 * (Separation Authority) AR 635-200, Chapter 3 * Character of Service) BCD * (Narrative Reason for Separation) Court-Martial, Other * Dates of Time Lost During This Period) 20030910-20040607 9. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 10. The available service record does not show any command influence. 11. His service record shows he was convicted of fraud, stealing U.S. Currency, and falsifying documents, as such, he was discharged due to a court adjudging a BCD. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions were carefully considered. Administrative notes annotated by the Analyst of Record will correct the applicant’s periods of honorable service. Based upon the preponderance of evidence, the Board agreed the discharge characterization was warranted as a result of the misconduct, and do not recommend an upgrade of his discharge characterization as requested in his personal statement. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION 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. 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): 1. Provide the applicant a copy of his DD Form 214 ending on 18 February 2009. 2. A review of the applicant’s record shows his DD Form 214 for the period ending 18 February 2009 is missing an important entry that may affect his eligibility for post- service benefits. As a result, amend item 18 (Remarks) of his DD Form 214 by adding: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19860226-19890716, 19890617-19920723, 19920724-19960117, and 19960118-20000504.” 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. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: a. A Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. b. 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. c. 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. 4. Title 10 United States Code, section 1552 governs operations of the ABCMR. Section f of this provision of law essentially states the authority of the ABCMR only extends to correction of a record. 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. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160016676 7 1