ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 September 2022 DOCKET NUMBER: AR20220006014 APPLICANT REQUESTS: reconsideration of his previous request to correct his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 2 January 2004 to show he received an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 4 (Enlistment Document), dated 8 November 1983 and subsequent reenlistment documents or extensions * Enlisted Record Brief (ERB) * Leave and Earning Statements from 1 January 1999 to 30 April 2003 * DD Form 214 for the period ending on 2 January 2004 * Prior Army Board for Correction of Military Records (ABCMR) Docket Number AR20070010655, boarded on 29 January 2008 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070010655, boarded on 29 January 2008. 2. The applicant states: a. He has been trying to live with this incident and humiliation that happened to him, which he believes was unjust. He now has panic attacks every time he thinks about it. He contemplated ending his own life after he received his court-martial, after his 19 years of service with no retirement. b. Prior to this incident, he has a spotless record, served in Iraq, was a Green Beret and instructor. He received the basic allowance for housing (BAH) money, but he gave it to his family and to his children (he was divorced at that time). c. At the time of the incident, he was notified that there was a discrepancy in his personnel files regarding the amount of BAH he was received close to his retirement (he completed a total of 19 years, 9 months and 3 days of net service). He received BAH with dependents, when in fact he should have received BAH Differential. He was unaware of this discrepancy since he gave his children and ex-spouse the money. d. He was court-martialed for larceny and for false official statement and reduced to E-1, sentenced to confinement for one year. He believes he was targeted because of being black and his ex-spouse was white. e. After his deployments in Iraq and the stress of his job as a Green Beret, his wife filed for divorce and after that his life went into shambles. This was the only disciplinary issue he had his entire career. f. Even after the court-martial, two years after his discharge, the finance office sent him a check for $10,000; however, he does not have a copy of this document. As a result of this unintended incident, he lost everything. At the time of the events, he was not in a good place to defend himself; he had anxiety as a result of his confinement for a year. 3. The applicant provides his ERB, dated 22 May 2002, which shows he earned his Special Forces Tab. This document does not list a military spouse or dependents. 4. A review of the applicant’s service record shows the following documentation: a. DD Form 4 shows he enlisted in the Regular Army on 8 November 1983. He had continuous active service from that date through the date of his discharge. b. DD Form 214 for the period ending on 2 January 2004, shows he was discharged on 2 January 2004 and received a bad conduct discharge (BCD), due to a court-martial. This document also shows in: (1) Item 12c (Net Active Service This Period): “0019 09 03”. (2) Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): * Meritorious Service Medal * Army Commendation Medal (2nd Award) * Army Achievement Medal (2nd Award) * Army Good Conduct Medal (5th Award) * Joint Meritorious Unit Award * National Defense Service Medal * Southwest Asia Service Medal with one bronze service star * Armed Forces Service Medal * Military Outstanding Volunteer Service Medal * Noncommissioned Officers Professional Development Ribbon (Advanced Level) * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * North Atlantic Treaty Organization (NATO) Medal * Air Assault Badge * Driver and Mechanic Badge * Driver with Driver and Mechanic Badge 5. Prior ABCMR Docket Number AR20070010655, boarded on 29 January 2008, shows the applicant, through counsel, submitted a request for an upgrade to his BCD; however, his request was denied. This case reflects the following information: a. The applicant was divorced in late 1992. He submitted the appropriate divorce documents to personnel. At that time, he was in receipt of basic allowance for housing (BAH) at the married rate with dependents. b. In 1998, his personnel office notified the applicant that there was a discrepancy in his records. His personnel file showed he was single but his pay records reflected that he was in receipt of BAH with dependents. c. Defense Finance and Accounting Service (DFAS) Form 3020.26-R (Situation Report), dated 14 November 2001, shows on 1 November 2001, in preparation for the applicant's retirement, a military pay technician was alerted to the fact that the applicant was drawing BAH with dependents but was in fact single living on base. During a separation interview, conducted on 6 November 2001, it was noted that the applicant's separation worksheet indicated he was married but when questioned he indicated he was divorced and provided a copy of his divorce decree. It was later determined that the applicant was not entitled to BAH with dependents but either BAH DIFF (Basic Allowance for Housing, Differential) or BAH at the single rate with a BAH DIFF, depending on whether or not he was in base housing. The issue was referred the Chief, Division Military Pay Officer (DMPO). It was estimated that the applicant owed the government as much as $55,000.00. The applicant's unit commander was notified. d. A 28 November 2001 Criminal Investigation Division Command (CID) Form 994 (Agent's Investigation Report) states that, on 15 November 2001, CID was notified by the applicant's unit commander that the applicant may have been committing housing allowance fraud. In the agent's interview with the applicant, the agent notified the applicant of his rights and indicated the applicant waived his rights. The applicant related that he had provided false information in relationship to his marital state in order not to create a financial hardship. Documentation was provided that showed the applicant's marital status and that he had been living off base at his previous duty stations. The agent's opined, following the interview, that there was sufficient evidence to believe that the applicant had committed the offenses of larceny, fraud, and making false official statements. e. In the applicant's statement to the CID agent, the applicant stated that he had joint custody of two of his three children and had to provide housing for them when they were with him as well as monthly child support. He also had to provide monthly child support for a third child, a total of $650.00. He stated that he did not directly benefit from the receipt of the monies, as it all went to his children. He stated that he had been told that he was entitled to BAH with dependents. He continued to list himself as married following his divorce in order to be able to continue to support his children without going bankrupt. In his statement, he indicated that he was willing to repay the money he was overpaid and that it was never his intention to defraud the government. f. General Court Martial Order Number 1, dated 23 July 2002, shows he was charged with one specification of making a false official statement with intent to deceive and two specifications of larceny greater than $100,00 from the U.S. Government in the form of BAH. He pled and was found guilty of both charges. g. On 15 April 2002, the applicant submitted a pretrial agreement in which he offered to plead guilty and to have his case reviewed by a military judge, in exchange for the general court-martial convening authority's agreement that any period of confinement imposed would not exceed 6 months. On 1 May 2002, the general court- martial convening authority accepted the offer. h. On 21 May 2002, in accordance with his pleas, a military judge heard his case and the applicant was found guilty on all charges. The sentence imposed was a reduction to pay grade E-1, confinement for 1 year, and a BCD. i. In accordance with the pretrial agreement the general court-martial convening authority approved only a reduction to pay grade E-1, confinement for 6 months, and a BCD. j. On 29 April 2003, the United States Army Court of Criminal Appeals reviewed the applicant's case and affirmed the findings and sentence of the court-martial as approved by the court-martial authority. k. The applicant appealed his case to the United States Court of Appeals for the Armed Forces. On 13 August 2003, the Court denied the applicant's petition for a grant of review. l. With the provisions of Article 71 (c), Uniform Code of Military Justice, having been complied with, Headquarters, US Army Armor Center and Fort Knox, General Court-Martial Order Number 235, dated 27 August 2003, directed that the applicant be discharged with a BCD. 6. The Prior ABCMR Docket Number AR20070019655, found the Board believed the trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were affected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 7. His DD Form 214 shows he was discharged with a BCD on 2 January 2004 in the rank/grade of private/E-1. He completed 19 years, 9 months, and 3 days of creditable service with 458 days in excess leave. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the criminal nature of the misconduct and the large dollar amount involved, as well as a lack of any post-board character evidence submitted by the applicant showing he has grown from the time of the misconduct, the Board concluded there was insufficient evidence of an error or injustice warranting any clemency. As a result, the Board recommended denying the applicant’s requested relief. 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. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. Paragraph 3-7b (General Discharge) states 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. c. Paragraph 3-11 states that 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. 2. 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. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) defines the separation codes used on the DD Form 214. SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. At the time of his separation, SPD code “JJD” was the appropriate SPD code for Soldiers separated due to a court-martial. 4. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The 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 on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006014 1 1