IN THE CASE OF: BOARD DATE: 5 September 2023 DOCKET NUMBER: AR20230003901 APPLICANT REQUESTS: • an upgrade of characterization of service from under other than honorable conditions to honorable • a change of his narrative reason for separation from Court-Martial (Other) to Secretarial Authority • receipt of his full retirement package APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record), 11 November 2022 • Counsel's legal brief • exhibit 1, commissioning document from military record, page 3 only, undated • exhibit 2, transcripts, Lock Haven University, 23 January 2001 • exhibit 3, officer record brief (OER), 9 November 2010 • exhibit 4, supplement to petition for grant of review, United States Court of Appeals for the Armed Forces, undated • exhibit 5, DD Form 214 (Certificate of Release or Discharge from Active Duty), 22 November 2013 • exhibit 6, financial documentation • exhibit 7, bankruptcy documentation • exhibit 8, professional summary • exhibit 9, character reference from Mr. E.W, 10 January 2022 • exhibit 10, character reference from Dr. E.V., 12 January 2022 • General Court-Martial Order Number 23, 8 November 2013 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 Board will not consider the request for retirement/retired pay because his request is premature. a. The applicant's military record contains a memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), dated 12 March 2009, which states, he completed the required years of qualifying Reserve service, and he was eligible for retired pay, on application, at age 60. b. The applicant will not reach the age of 60 until March 2025, at which time, he may make application for retirement in accordance with his 20-year letter. 3. The applicant defers his statement to counsel, who provided a legal brief, wherein he states, in effect: a. He commissioned into the Pennsylvania (PA) National Guard as a second lieutenant (2LT) after graduating from Lock Haven University and its Reserve Officers' Training Corps (ROTC) program on 16 May 1987. He completed Tank/Automotive Maintenance Officer Basic Couse on 8 September 1988. He served in the PA National Guard until 31 March 1995. b. He transferred into the United States Army Reserve and served in St. Louis, MO, Scranton, PA, and Heidelberg, Germany in the S-3 (operations) shop as the Maintenance Readiness Officer. c. He was ordered to Active Duty on 6 January 2003 to 26 April 2004 with service at the Pentagon. During this time, he received reimbursement from the United States for lodging, this would eventually be the cause of his separation. Following these orders, he was ordered to Tobyhanna, PA from 27 April 2004 to 25 July 2006, then Scranton, PA then to the shift chief at Fort Monmouth, NJ from 27 August 2008. d. On 4 October 2010, he was charged with conspiracy to commit larceny (two specifications), false official statement (three specifications), larceny (three specifications), and submission of a fraudulent claims. On 11 January 2011 he was arraigned by the military judge with these charges. He was tried by a military judge and an officer member panel from 11 January 2011 through 14 January 2011 for violations of Article(s) 81 (Conspiracy), 107 (False Official Statements), 121 (Larceny), and 132 (Frauds Against the United States) of the United States Code of Military Justice (UCMJ). He plead guilty to the charges conditioned upon the ability to appeal the decision prior to the statute of limitations. The decision was made to give the punishment of discharge from the Army, and he was separated with an under other than honorable conditions discharge. e. Following separation, he made consistent payments, as well as continued wage garnishments over a period of 18 months towards the debt he accrued. He filed Chapter 13 (Bankruptcy), and the Defense Finance and Accounting Service (DFAS) was included in the waiving of his debt. f. He served honorably for over 20 years and had a brief period in his career which he is not proud of, like many others who have served. He made mistakes in under a year, which compared to a very small portion of his extensive career where he was committed to his job and the United Stated Army. The long-term honorable service should not be overshadowed by one mistake. g. He has been improperly stigmatized and harmed by his discharge which has been recognized by various courts. He was faced in various punishments and is now working to build a better life. The discharge lingers even in the attempts to better himself, his family, and his friends. He was a teacher and now holds the position of the Dean of Students/Assistance Principal. He coached track and field from 2016 to 2018 and currently is the head tennis coach since 2018. He continues to grow but is still hindered by his discharge status. h. His debt is now cleared, he deserves his retirement benefits for his vast years of service to the United States Army. Character references were provided which people spoke on his traits while serving in the United States Army. A letter from E.W., discussed key values someone looks for in a leader and friend including a quiet dignity, willingness to volunteer, dependability, honest and hard working. A letter from Dr. E.V., states the applicant is one of the best educators he has ever met in his 30 years of education and that the applicant has moved on from his mistakes and is consistently fair and involved in matters of discipline. i. His qualities are referenced during his service and show what he continues to work on since being separated. It is unfair to embarrass and shroud the accomplishments of countless years of service after one mistake, since it was nonviolent and resolved through payments and bankruptcy. He went through extreme financial instability and struggled to rebound from his mistake, however he carried forward and now has everything he could ask for, except the honor and recognition he deserves for his countless years of selfless service. 4. The applicant enlisted in the Army National Guard on date 11 February 1986 and commissioned as an officer in the rank of 2LT on 16 May 1987. 5. General court-martial order number 1, 31 May 2011, shows - a. The applicant was arraigned and convicted of the following charge(s) and specification(s) at a general court martial: (1) He plead guilty to Charge I: Article 81 (Conspiracy) and was found guilty with the following specification(s): (a) Specification 1 - In or about January 2003, conspire with Lieutenant Colonel (LTC) J.B., to commit an offense under the UCMJ, to wit: larceny of United States Currency of a value of more than $500.00, the property of the United States Government, and in order to effect the object of the conspiracy the applicant, did present false vouchers to the DFAS, an office of the United States duly authorized to approve and pay such a claim. (b) Specification 2 - In or about October 2003, conspire with one C., to commit an offense under the UCMJ, to wit: larceny of United States Currency of a value of more than $500.00, the property of the United States Government, and in order to effect the object of the conspiracy the applicant, did present false vouchers to the DFAS, an office of the United States duly authorized to approve and pay such a claim (2) He plead guilty to Charge II: Article 107 (False Official Statements) and was found guilty of the charge and of the of the following specification(s): (a) Specification 1 - On divers occasions from between on or about 5 January 2003 to on or about 27 September 2003, with intent to deceive, sign official documents, to wit: DD Form 1351-2 (Travel Voucher or Subvoucher), which documents were false in certain particulars and were then known by the applicant, to be so false. (b) Specification 2 - On divers occasions from between on or about 28 September 2003 to on or about 26 April 2004, with intent to deceive, sign official documents, to wit: DD Form 1351-2, which documents were false in certain particulars and were then known by the applicant, to be so false. (c) Specification 3 - On divers occasions from between on or about 1 July 2005 to on or about 30 June 2006, with intent to deceive, sign official documents, to wit: DD Form 1351-2, which documents were false in certain particulars and were then known by the applicant, to be so false. (3) He plead guilty to Charge III: Article 121 (Larceny) and was found guilty of the charge and of the following specification(s): (a) Specification 1 - On divers occasions from between on or about 5 January 2003 and on or about 27 September 2003, steal military property under false pretenses, United States currency, of a value of more than $500.00, the property of the United States Government. (b) Specification 2 - On divers occasions from between on or about 28 September 2003 and on or about 26 April 2004, steal military property under false pretenses, United States currency, of a value of more than $500.00, the property of the United States Government. (c) Specification 3 - On diverse occasions from between on or about 1 July 2005 and on or about 30 June 2006, steal military property under false pretenses, United States currency, of a value of more than $500.00, the property of the United States Government. (4) He plead guilty to Charge IV: Article 132 (Frauds Against the United States) and was found guilty of the charge and of the following specification(s): Specification: For the purpose of obtaining the approval, allowance, and payment of claims against the United States in an amount exceeding $500.00 did, at or near Washington, DC and Scotrun, PA, on divers occasions between on or about 1 January 2003 and on or about 26 April 2004, make and use certain writings, to wit: fraudulent lease agreements, which said ,writings, the accused then knew were false and fraudulent, in that the accused never intended to or resided at said properties, he never actually contracted with said landlords, and were then known by the accused to be false and fraudulent. b. His sentence, which was adjudged on 14 January 2011, was to be dismissed from service. c. His sentence was approved but would not be executed until the completion of an appellate review. 6. General Court martial order number 23, published by Headquarters, Department of the Army on 8 November 2013, states, "the proceedings were promulgated in General Court-Martial Order Number 1..., dated 31 May 2011, as corrected by United States Army Court of Criminal Appeals Notice of Court-Martial Order Correction, dated 28 December 2012" shows – a. The applicant was convicted of the following offenses: (1) Charge I: Violation of Article 81, UCMJ. Two specifications of conspiracy. On or about January 2003, conspired with LTC J.S.B., to commit an offense under the UCMJ, to wit: larceny of the United States Currency of a value of more than $500.00, the property of the United States Government and in order to effect the object of the conspiracy the applicant, presented false vouchers to DFAS, an office of the United States duly authorized to approve and pay such a claim, and, on or about October 2003, conspired with one C., to commit an offense under the UCMJ, to wit: larceny of the United States Currency of a value of more than $500.00, the property of the United States Government, and in order to effect the object of the conspiracy, the applicant, presented false vouchers to DFAS, an office of the United States duly authorized to approve and pay such a claim. (2) Charge II: violation of 107, UCMJ. Three specifications of making false official statements. On divers occasions from between on or about 5 January 2003 to on or about 27 September 2003, and from between on or about 28 September 2003 to on or about 26 April 2004, and from between on or about 1 July 2005 to on or about 30 June 2006, with intent to deceive signed official documents, to wit: DD Forms 1351-2 travel vouchers, which documents were false in certain particulars and were the known by the applicant to be so false. (3) Charge III: violation of article 121, UCMJ. Three specifications of larceny. On divers occasions from between on or about 5 January 2003 and on or about 27 September 2003, and on or about 28 September 2003 and on or about 26 April 2004, and on or about 1 July 2005 and or on or about 30 June 2006, stole United Stated currency, of a value of more than $500.00, the property of the United States Government under false pretenses. (4) Charge IV: violation of Article 132, fraud against the United States. For the purpose of obtaining the approval, allowance, and payment of claims against the United States in an amount exceeding $500.00, at or near Washington, DC and Scotrun, PA on divers occasions between on or about 1 January 2003 and on or about 30 June 2006, made and used certain writings, to wit: fraudulent lease agreements, which said writings, the accused then knew were false and fraudulent, in that the accused never intend to or resided at said properties, he never actually contracted said landlords, and in that one of the leased was for property he actually owned and were than known by the accused to be so false and fraudulent. b. Appellate Actions: On 28 December 2012, the United States Army Court of Criminal Appeals affirmed the findings and the sentence as approved by the convening authority. The conviction became final n 8 March 2013, when the applicant's petition to the United States Courts of Appeals for the Armed Forces was denied. 7. The applicants DD Form 214 shows he was dismissed or discharged as appropriate on 22 November 2013, under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 5-17 (rules for processing dismissal of an officer due to general courts-martial proceedings) in the rank/grade of LTC/O-5. He received a separation code of "JJD" and a reentry code of "NA". He completed 3 years, 3 months, and 24 days of net active service for this period. His DD Form 214 reflects the following personal decorations: • Meritorious Service Medal • Joint Service Commendation Medal • Commendation Medal • Joint Service Achievement Medal • Army Achievement Medal • Army Reserve Component Achievement Medal (2nd award) 8. The applicant/counsel provided his financials, bankruptcy documents, and letters of support, which were previously addressed in counsel's legal brief. 9. Regulatory guidance provides an officer's characterization of service will be predicated on the officer's behavior and performance while a member of the Army. Characterization normally will be based on a pattern of behavior and duty performance rather than an isolated incident. However, an officer will normally receive a discharge Under Other Than Honorable Conditions characterization of service when they are involuntarily separated due to misconduct, moral or professional dereliction or for the final revocation of a security clearance. 10. The applicant provided argument or evidence the Board should consider, along with the applicant's overall record, in accordance with the published equity, injustice, or clemency determination guidance BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. a. The applicant's trial by a general court-martial was warranted by the gravity of the offenses charged (Conspiracy, False Official Statements, Larceny, Fraud). His conviction and discharge were conducted in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He was dismissed pursuant to an approved sentence of a general court-martial. The appellate review was completed, and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process, and the rights of the applicant were fully protected. b. The applicant’s narrative reason for separation was assigned based on the fact that he was convicted by a general court-martial. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this Board 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. The Board determined his service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, clemency in the form of an honorable or general discharge or a change to the reason for separation is not warranted in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING xx: xx: xx: 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. 9/5/2023 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. 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 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. 2. Army Regulation (AR) 600-8-24, in effect at the time, prescribes policies and procedures governing transfer and discharge of Army officer personnel. This regulation includes policy statements, operating tasks, rules in support of operating tasks, and sequential steps of each operating task. a. Chapter 5 of this regulation, prescribes disposition and procedures concerning miscellaneous types of separations whereby an officer may be dismissed, released, separated, and discharged from Active Duty (AD). In addition, it provides procedures whereby officers on AD or retired may be dropped from the rolls of the Army. b. 5-17 of this regulation shows the rules for processing dismissal of an officer due to general courts-martial proceedings. An officer convicted and sentenced to dismissal as a result of a general court martial processing will be processed pending appellate review of such proceedings as follows: (1) A Regular Army officer will be retained on AD until the appellate review is completed or placed on excess leave in accordance with Army Regulation (AR) 600-8-10 (Leaves and Passes). (2) A Reserve Component officer may be released from AD pending completion of the appellate review, under paragraphs 2–33 and 2–34, or placed on excess leave in accordance with AR 600-8-10 in lieu of Release from Active Duty (REFFRAD). c. Characterization will be based on a pattern of behavior and duty performance rather than an isolated incident. (1) An officer will normally receive an Honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty, or the final revocation of a security clearance for reasons that do not involve acts of misconduct, for an officer. (2) An officer will normally receive an under honorable conditions characterization of service when the officer’s military record is satisfactory but not sufficiently meritorious to warrant an Honorable discharge. (3) An officer will normally receive a discharge under other than honorable conditions characterization of service when they: • resign for the good of the service, • are dropped from the rolls of the Army, • are involuntarily separated due to misconduct, moral or professional dereliction or for the final revocation of a security clearance • are discharged following conviction by civilian authorizes 3. Secretarial Plenary Authority is the prerogative of SECARMY. Secretarial plenary separation authority is exercised sparingly and used when no other provision of this regulation applies. Separation under Secretarial Plenary Authority is limited to cases where the early separation of a Soldier is clearly in the best interest of the Army. Separations under this chapter are effective only if approved in writing by SECARMY or the Secretary’s approved designee as announced in updated memoranda. 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 (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 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, 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. //NOTHING FOLLOWS//