RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 August 2006
      DOCKET NUMBER:  AR20050010010


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. W. W. Osborn, Jr.             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Ronald D. Gant                |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his bad conduct discharge (BCD) be upgraded
to
honorable, that he be restored to the rank of sergeant first class (SFC/E-
7), and that he be allowed to retire or, in the alternative, that he be
issued a general discharge (GD) under honorable conditions.

2.  He believes that permanently depriving him of the benefits of
retirement is unjust and, when judged in light of his service, is
disproportionate punishment to the offenses he committed.  He contends
clemency is appropriate because he has acknowledged the wrongs that he
committed and reimbursed the Army and Air Force Exchange System (AAFES).
He thinks that reduction to private (E-1) for several years would have been
adequate punishment relative to the crimes he committed.  He also states
that granting clemency and providing relief is warranted based on his
overall record of service.  Before he committed the offenses which gave
rise to his court-martial and discharge, he had completed over 19 years of
exemplary and faithful service unblemished by any misconduct. He notes that
many members of his command supported his original request for clemency.
Clemency would also allow him to receive Department of Veteran Affairs (VA)
medical treatment for an injury he suffered while on active duty.
Furthermore, he points out that clemency, even retirement at pay grade E-7,
would not disturb the Federal felony conviction that he must live with for
the rest of his life.

3.  He argues that clemency is warranted because current policies and
procedures represent a substantial enhancement of rights in that the Court
of Appeals for the Armed Forces (CAAF) used his case to assert that the 120
day speedy trial time-limit applied to re-trials.  Nevertheless, it did not
apply that standard to his case.  The Army took 338 days to conduct the
rehearing on his sentence.  He contends that the long delay further argues
for clemency because the authorities did not consider him a threat as a
repeat offender and were in no hurry to hold the hearing.

4.  Finally, he contends that his post-service behavior and conduct
demonstrate that clemency is appropriate.  However, he notes that despite
what he has been able to accomplish in civilian life the bad conduct
discharge is still an impediment to his achieving his true potential.  He
notes that upgrading his discharge would make him eligible for Department
of Veteran Affairs (VA) benefits for a disability he incurred while on
active duty.

5.  The applicant provides copies of documents from his military records,
such as evaluations, awards and decorations, and letters of
commendation/appreciation received during his active duty service.  He
provides copies of a 2 March 1994 physical profile showing duty limitations
caused by "lumbar disc disease" and a 1998 medical report from the former
Army doctor who had treated him from 1992 to 1994.  He further provides
copies of various court-martial documents, his DD Form 214 (Certificate of
Release or Discharge from Active Duty), and a January 2003 VA decision
document to the effect that he is not eligible for VA benefits because of
his discharge.  He also submits documentation of his post-service behavior
and conduct in the form of character references, letters of employment, and
statements of support.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  A veterans service organization (VSO), the original counsel for the
applicant, requests that his BCD be upgraded to honorable, restoration of
his rank and pay grade of SFC/E-7, and that he be allowed to retire.
Counsel also offered the following:

      a.  The VSO states that the applicant served in the United States
Army for over 27 years.  He was responsible for Soldiers in over 30
military occupational specialties (MOSs) in the ranks of E-1 through E-8.
He received many outstanding awards, commendations, and letters throughout
his remarkable career, and was a model Soldier.  He had completed over 19
and 1/2 years of exemplary faithful service that was unblemished.  He
served proudly as a helicopter mechanic and in many positions of increasing
responsibility and maintained the highest standards in whatever he
attempted to accomplish.

      b.  The VSO also stated that the applicant's letter, dated 26 April
2004, reiterates, detail by detail, how passionately he regrets the mistake
in his military career.  He admits his extremely poor decision and does not
blame anyone but himself for his misconduct.  He stated "his crimes were
egregious and represented a serious departure from the standards of honesty
and integrity that noncommissioned officers (NCOs) were expected to
embody."  He reimbursed AAFES the funds he took by improper refunds, and
apologized to his chain of command and to the Army for the disgrace that he
brought.

      c.  Counsel goes on to state that the applicant's post-service
achievements demonstrate that he has learned from his mistakes, had made
great strides in spite of his BCD, and is currently making a positive
impact in his community.  Counsel states that the preponderance of evidence
in this case weighs heavily in support of the applicant and strongly
supports his request based on the fact that he committed one offense in
over 19 years of faithful, dedicated service.

      d.  Counsel also requests the Board consider the disabilities the
applicant suffers as a direct result of his military service and that
upgrading his discharge would entitle him to VA benefits, but offered no
additional documentation.

2.  An individual, designated by the applicant as his power-of-attorney,
serves as counsel for this follow-on review.  She offered the following
statements and documents:

      a.  She states the applicant served his country with an unblemished
record for 19 years.  He received many awards and commendations and his
discharge should reflect his overall record of service.  His was not
treated fairly and his punishment did not fit the crime.

      b.  She reports that the battalion command sergeant major (CSM) knew
that the applicant had an outstanding record prior to assignment to Alaska,
but he also believes that the applicant was psychologically unsuited to
duty in Alaska because of susceptibly to seasonal affective disorder (SAD).
 She notes that one of the articles about SAD points out that SAD is three
times more prevalent among the residents of Fairbanks, Alaska than it is in
the United States population in general.  The applicant was depressed in
Alaska.  He was affected by circadian rhythm disorder [the body’s natural
cycle of rest, sleep and activity] as well as SAD and he was probably
affected by the magnetic fields caused by electro-magnetic radiation at the
High Frequency Active Auroral Research Program (HAARP) near Fairbanks,
Alaska.  The applicant consistently complained of psychological symptoms
from the time he arrived in Alaska and no one listened to him.

      c.  Since he left the Army, the applicant has been a solid citizen.
He has remarried and is a father to his stepchildren.  He works in the
computer industry and has received promotions and he pays his taxes.  He
helps others by doing regular volunteer work.

      d.  Counsel submits five numbered exhibits as follows:

            1.  an affidavit from the battalion command sergeant major
      (CSM), now retired;


            2.  character references from a tax accountant, an employer,
      and
an educator;
           3.   an article on SAD and one on the importance of sunlight;


           4.   numerous magazine articles on SAD [most of them of
 professional caliber], a University of Alaska at Fairbanks graduate school
thesis on SAD in the Far North, a lengthy article on men and depression;


           5.   three articles on circadian rhythms, approximately 20
           articles on
HAARP and the effects of electromagnetic radiation, and;


           6.   an article on the military history of Alaska.

CONSIDERATION OF EVIDENCE:

1.  In a letter to a United States Senator the applicant complained that in
a previous case (AR20040004144) the ABCMR invoked the 3-year time limit,
but that his case was not 3 years old when he submitted his application.
The Senator forwarded his correspondence to the ABCMR and a reconsideration
case was opened.  The applicant was discharged on 24 September 2001 and the
application was received on 21 July 2004.  The 3-year statute of
limitations was, indeed, misapplied.  Therefore, rather than being treated
as a reconsideration, this entire case is considered "de novo."

2.  When his misconduct started on 2 October 1993, the applicant was a
sergeant first class with approximately 19 years and 2 months of continuous
active duty enlisted service.  He had been awarded the Army Commendation
Medal Army (2nd award), the Joint Service Commendation, the Good Conduct
Medal (6th award), the National Defense Serve Medal, the Noncommissioned
Officer Professional Development Ribbon with three loops, the Overseas
Service Ribbon with two bronze service stars, the Army Recruiter Badge with
two gold stars, the Senior Aircraft Crewmember Badge, the Army Superior
Unit Award, the Expert Qualification Badge with Rifle and Pistol Badges.

3.  The applicant had two noncommissioned officer evaluation reports
(NCOER) completed at Fort Wainwright, Alaska.  In the earlier one from
August 1992 through June 1993 his rater marked him as successful in four
categories and as exceeding requirements in Leadership where he received
bulleted comments of, “Projects self-confidence, authority and enthusiasm;
Motivated two soldiers to obtain the rank of sergeant; and Recognizes
subordinates for their contributions and accomplishments.”  Under
Responsibility and Accountability he was cited for, “Accepts responsibility
for own decisions and those of subordinates; Delegates responsibility
effectively; and Responsible for five…aircraft…in excess of 20 million
dollars.”
4.  On his final NCOER, he was rated for his performance as the Battalion
Safety NCO.   Under Physical fitness and military bearing he received the
bulleted comment, ”Profile does not hinder job performance.”  He received
negative comments from the rater and senior rater because of his
misconduct.

5.  On 28 January 1994, the applicant was informed of his rights concerning
self-incrimination and submitted a sworn statement to the effect that he
knew nothing about his wife's purchase of computer chips at less than the
correct price and that he would never have switched price tags in any
store.

6.  The applicant's 31 January 1994 request for voluntary retirement was
returned without action on 22 February 1994.

7.  In early March 1994 the applicant was issued a permanent profile of
113111 due to lumbar disc disease.  His profile indicates assignment
limitations of no wearing of helmet and that a medical evaluation board
(MEB) be initiated.    However, medical processing was suspended because of
the pending charges.   There is no available medical documentation of any
psychological or emotional problem.

8.  On 28 March 1994 the applicant tendered an agreement to plead guilty,
providing the convening authority approve no sentence in excess of a
dishonorable discharge, reduction to private (E-1), forfeiture of all pay
and allowances, and confinement for 12 months.  The general court-martial
convening authority (GCMCA) agreed.

9.  The applicant, his defense counsel, and the trial counsel stipulated
that he had conceived the idea and conspired with his wife to make money by
buying and returning AAFES merchandise.  The applicant and his wife
repeatedly switched prices on AAFES merchandise and purchased the items at
the lower price.  They later returned the items and received refunds at the
original, full price.  This scheme netted approximately $2,769.00 in
unlawful refunds.  [The record of trial shows he paid $2800.00 in
restitution to the AAFES, which was considered by an AAFES official to be
full restitution.]

10.  On 13 April 1994 the applicant was tried by a general court-martial
and convicted in accordance with his pleas of conspiracy, eight
specifications of wrongful appropriation between 2 October 1993 and 28
December 1993, seven specifications of larceny, and one specification of
making a false official report.  The applicant’s chain of command,
including the battalion CSM and the battalion commander, testified for the
defense.  They spoke of his superior performance of duty, indicated that
the offenses were so out of character as to be difficult to believe, and
stated that they would willingly take him back.  The only information about
the applicant’s health issues concerned his bad back.  The court-martial
panel adjudged a sentence consisting of forfeiture of all pay and
allowances, reduction to private (E-1), and a dishonorable discharge.

11.  The GCMCA approved the sentence on 2 August 1994 and except for the
dishonorable discharge, ordered it executed.

12.  On 8 December 1995, Army Court of Criminal Appeals (ACCA) affirmed the
findings and only so much of the sentence as provided for a DD, forfeiture
of $550.00 per month until the discharge was ordered executed, and
reduction to pay grade E-1.

13.  On 9 June 1997, the United States Court of Criminal Appeals for the
Armed Forces (CAAF) found that the military judge had erred in not
admitting evidence about the economic value of lost retirement benefits
that would result from a punitive discharge, set aside the sentence and
ordered a rehearing on the sentence.

14.  The case was forwarded (with authority to order a new hearing on
sentence) to the Commanding General, Fort Sill, Oklahoma, who had
jurisdiction over the applicant, then on excess leave status.  Much of the
ensuing delay occurred because the GCMCA at Fort Wainwright, Alaska first
elected to exert jurisdiction and then chose not to do so.

15.  On 11 May 1998, the applicant was seen by an orthopedic surgeon who
stated that his condition consisted of cervical spondylosis [any of various
degenerative diseases of the spine] as well as a history of lumbar
spondylosis.  The surgeon also stated that he intended to proceed with a
medical evaluation board (MEB); however, this action was not initiated
because of the court-martial charges.

16.  The rehearing was held on 13 May 1998, 338 days after the Court's
decision and 316 days after transmittal to Fort Sill, Oklahoma.   The
applicant was sentenced to a BCD, total forfeiture of pay and allowances,
and reduction to the pay grade of E-1.

17.  The rehearing GCMCA listed, in detail, every document and factor
offered in mitigation, including statements from the applicant's doctor and
supporters; his service records; medical records; awards and
accomplishments; and calculations
of lifetime losses in retired pay at various pay grades ($497,281.00 for E-
7 down to $192,348.00 for E-1).  The GCMCA approved only so much of the
sentence as provided for a BCD and reduction to the pay grade of E-1 on
13 August 1998.

18.  On 25 June 1999, the ACCA affirmed the sentence as approved by the
sentence rehearing authority.  The applicant's case was argued on 3 May
2000 before the CAAF.  The CAAF held that: (1) although it should not have
taken the Government 337 days to accomplish a sentence rehearing, the
applicant's Sixth Amendment right to a speedy trial was not violated by the
delay, and (2) any error in the military judge's instructions at sentence
rehearing was harmless.  On 24 July 2000, CAAF affirmed the ACCA decision.

19.  On 24 September 2001, the applicant was discharged from the Army
pursuant to the sentence of a general court-martial and was issued a BCD.
He now had a total of 27 years, 1 month, and 25 days of creditable service
[Approximately 7 years of it was on appellate leave.]

20.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 3-7, 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.

21.  Army Regulation 635-40, paragraph 1-2, provides that a Soldier who is
charged with an offense or is under investigation for an offense for which
he could be dismissed or given a punitive discharge may not be referred for
disability processing.  However, if the officer exercising appropriate
court-martial jurisdiction dismisses the charge or refers it for trial to a
court-martial which cannot adjudge such a sentence, the case may be
referred for disability processing.  When forwarded, the records of such a
case must contain a copy of the action signed by the court-martial
convening authority who made the decision.

22.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), paragraph 3-7 (character of service) states that 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.
 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.

23.  Title 10, U. S. Code, section 1552(f) states that, with respect to
records of courts-martial tried or reviewed under the Uniform Code of
Military Justice, the Board's action may extend only to action on the
sentence of a court-martial for purposes of clemency.

24.  With reference to the quality of his service, the post-service issue
and associated factors the documentation provided by the applicant and his
counsels includes the following pertinent information:

      a.  A former Army physician, an orthopedist, who treated the applicant
for a bad back on active duty, relates that he originated the permanent
physical profile and would have proceeded with medical disability
processing had it not been for the pending charges.


      b.  A copy of a 16 January 2003 letter from the VA informing him that
his discharge did not entitle him to any VA benefits.


      c.  The retired CSM reports that he testified on the applicant’s
behalf at both the original trial and the resentencing hearing.  He relates
that the applicant’s wife received a sentence that allowed her a year to
serve 4 weeks worth of weekend confinement while the applicant was held in
limbo by the judicial system for over 7 years.  The CSM relates that he was
prevented from testifying about other members of the command who committed
more serious crimes that were adjudicated at lower level than at a general
court-martial.  These include a chief warrant officer four who conspired to
smuggle weapons but received a forfeiture of pay and a reprimand and was
allowed to retire.  He also mentions a lieutenant who was caught
shoplifting in the AAFES and allowed to resign his commission.  The CSM is
convinced the applicant received a disproportionate sentence.  He states
that because of his bad back the applicant should not have been stationed
in Alaska where Seasonal Affective Disorder and long summer daylight both
exacerbate sleeping problems.  The CSM believes that the applicant provided
superior service for over 18 years.  He should be allowed to retire and
receive VA benefits.  He always thought that the applicant deserved to be
punished but he does not think the punishment fits the crime.


      d.  The applicant’s civilian income tax preparer states that she has
known him since 2000 and that he has been regularly employed.  His employer
states that he is an information technology (IT) purchasing supervisor at
The Men’s Warehouse corporate office, and a valued employee.  An educator
relates that the applicant utilizes his IT skills as well as his own time
in volunteer efforts.  For example, his scheduling expertise helped to
provide food and shelter for 14,000 people and also improved the usefulness
of donated vehicles.  She reports that the applicant is well-known and
greatly appreciated in the community and by his peers.  He is an
outstanding citizen and has used his time unselfishly in meeting the needs
of others.


      e.  The numerous articles point to the inter-relationships between
SAD, environmental factors, and depression as well as other conditions such
as post-traumatic stress disorder (PTSD).  They also discuss some of the
effects of depression on behavior, including poor judgment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant pled guilty before a general court-martial to conspiracy,
eight specifications of wrongful appropriation, seven specifications of
larceny and one specification of making a false official report.  He
offered to plead guilty in exchange for a sentence not in excess of a
dishonorable discharge, reduction to private (E-1), forfeiture of all pay
and allowances, and confinement for
12 months.

2.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the BCD appropriately characterizes the
misconduct for which the applicant was convicted.

3.  The applicant's contentions about the delay and the constitutional
issue of a speedy trial relate to procedural and legal matters which were
finally and conclusively adjudicated in the court-martial appellate
process.

4.  The adjudged sentence was quite lenient in that it included no
confinement.

5.  The rehearing GCMCA clearly reviewed all of the mitigating
circumstances arising from the applicant's military career.  This
mitigation seems to have been applied by further reducing the sentence.


6.  There is no competent evidence to connect the psychological factors
introduced with the applicant’s behavior.  While such factors may have some
influence on behavior, such as there being statistical relationship between
depression and poor judgment or PTSD and low impulse control, there is no
evidence of record to relate the applicant’s offenses to such factors.

7.  Furthermore, the applicant’s NCOERs while in Alaska, the testimony
about his performance while serving in Alaska, and the absence of any prior
argument or evidence seems to suggest that such psychological factors did
not really play an important part in the applicant’s offenses.

8.  Failing evidence that the applicant was suffering from a mental or
emotional defect so severe that he could not tell right from wrong and
adhere to the right, the psychological argument does nothing to demonstrate
an injustice in the discharge.

9.  The applicant’s behavior violated the special trust and confidence
placed in him as a senior NCO; however, considering all the facts of the
case, while the need for good order and discipline seemed to have required
a punitive discharge at the time, the applicant’s 19 years of exemplary
service greatly mitigates his offenses and the loss of retirement benefits
is, in itself a heavy punishment.

10.  The applicant’s years of offense-free service and his post-service
behavior tend to demonstrate that his misconduct was an aberration of
character and the post-service behavior also suggests that clemency is
appropriate.

11.  The applicant's court-martial case was finalized approximately 7 and
1/2 years after he tendered the pretrial agreement that the GCMCA accepted.
 The appeals process always takes time, but an accused who prevails during
that process should not be held accountable for delays.  The rehearing
judge, the ACCA, and the CAAF may have all agreed that the delay in the
rehearing process had not been detrimental to the applicant, but a person
cannot twist in the wind for 7 1/2 years without paying a price.  The
applicant came clean, cooperated with authorities, and tried to clean up
the wreckage of the past, but the waiting seems to have compounded the
punishment.

12.  Prior to the misconduct that led to the discharge the applicant was a
good Soldier and a trusted NCO.  By his misconduct, the applicant forfeited
about half-a-million dollars in earned retirement income and significant
other benefits.  He suffers from a bad back as the result of his service,
but is disqualified from VA benefits.  These factors, viewed in the light
of his post-service behavior and
conduct, indicate that the current discharge is now unduly harsh and should
be changed to a general discharge under honorable conditions as a matter of
clemency.

13.  However, the calculated and repeated nature of the offenses, his
position as a senior NCO, and his years of service all increase the
severity of his behavior.  Restoration of his rank, retirement, and an
honorable characterization of his service are all unwarranted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by voiding his bad conduct discharge and issuing a
general under honorable conditions discharge due to Secretarial Authority,

2.  The Board further determined that 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
restoring his rank, authorizing retirement and upgrading the
characterization of his service to honorable.





                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050010010                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060829                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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