RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 February 2007
      DOCKET NUMBER:  AR20060010068


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dale E. DeBruler              |     |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, in effect, relief from the debt he incurred as
a result of his general court-martial (GCM) sentence, and advancement on
the Retired List to the highest grade he satisfactorily held while serving
on active duty.

2.  The applicant states, in effect, that the court-martial sentence
imposed on him and the resulting debt were too harsh.  He claims that he
entered into a plea agreement that resulted in his being reduced from
master sergeant (MSG) to staff sergeant (SSG), a fine of $30, 000.00, and a
forfeiture of $500.00 per month for 11 months, which totaled $35,500.00.
This sentence was the result of his claiming traveling expenses in the
amount of $14,899.27.  He further states that subsequent to his retirement,
he received a bill from the Defense Finance and Accounting Service (DFAS)
in the amount of $60,242.32 because he pled guilty to the $14,899.27 in
travel entitlements.  He claims the amount of the bill versus the court-
martial sentence has served an injustice upon him and his family.

3.  The applicant also states that he knows he did wrong, but in his
honest, truthful, and humble opinion, the punishment he received was too
severe for the crime committed.  Any crime is bad and he is deeply sorry
for what he did.  However, he claims he was told by his attorneys that it
was in his best interest to plead guilty for the total amount of the travel
entitlements and it was a win-win situation for him and the Government.
The Government would receive a conviction without spending a lot of money
on bringing witnesses in from all over the country, and he would have the
opportunity to retire at the highest grade held by paying back the maximum
amount of $10,000.00.  He states his defense attorney recommended a fine
double the amount of $14,899.27 because the maximum amount he would be
required to pay would be $10,000.00, and requested he not be reduced so he
could remain in the military.

4.  The applicant provides the following documents in support of his
application:  Self-Authored Letter to DFAS, dated 24 February 2004; DFAS
Letter, dated
6 March 2004; Self-Authored Letter to Commander, National Training Center,
Fort Irwin, California, dated 29 July 2004; and Fort Irwin Staff Judge
Advocate (SJA) Letter, dated 24 August 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that on 7 July 1981, he enlisted in the
Regular Army and entered active duty.  He was trained in and awarded
military occupational specialty (MOS) 76Y (Supply Specialist), which is now
MOS 92Y.

2.  The applicant's record shows that he was promoted to sergeant first
class (SFC) on 1 April 1997, and to MSG, which is highest rank he attained
while serving on active duty, on 1 March 2001.

3.  On 24 February 2003, pursuant to his pleas, a GCM found the applicant
guilty of violating Article 107 of the Uniform Code of Military Justice
(UCMJ) by falsifying official records on divers occasions between 16 July
1997 and 4 May 1998; and of violating Article 121 of the UCMJ by stealing
travel entitlements valued at about $14,899.27 on divers occasions between
16 July 1997 and
4 May 1998.  The resultant sentence from the Military Judge was reduction
to SSG, forfeiture of $500.00 per month for 11 months, and a fine of
$30,000.00 and to serve confinement for 1 year if the fine was not paid.

4.  On 11 April 2003, in Headquarters, National Training Center and Fort
Irwin GCM Order Number 10, the GCM convening authority approved only so
much of the sentence adjudged by the Military Judge that provided for
reduction to SSG, forfeiture of $500.00 pay per month for 11 months, and a
fine of $30,000, and ordered the sentence to be duly executed.

5.  On 7 May 2003, Chief, Examination and New Trails Division, United
States Army Legal Services Agency (USALSA), Arlington, Virginia published a
letter notifying the applicant that pursuant to Article 69(a) of the UCMJ,
the USALSA had completed the appellate examination of his GCM and issued a
corrected copy of GCM Order Number 10 reflecting this review.  The
applicant was also informed that the record of trial in his case contained
sufficient legal and competent evidence to support the approved findings of
guilty and the sentence beyond a reasonable doubt.  Therefore, in
accordance with Article 76 of the UCMJ, the findings and sentence in his
case were final and conclusive.

6.  On 30 June 2003, the applicant was honorably released from active duty
(REFRAD) for the purpose of retirement.  At the time, he held the rank of
SSG.  The separation document (DD Form 214) was not available in the
records provided the Board and was not submitted by the applicant.

7.  On 24 February 2004, after having been notified of a debt in the amount
of $56,054.01, the applicant wrote the DFAS, Denver Center, Denver
Colorado, requesting reconsideration of the debt.  He indicated that he had
entered into a plea agreement that stated there would be no term of
confinement, no punitive discharge, no reduction below SSG, and that any
other lawfully adjudged punishment, to include a fine could be approved.
He indicated that his sentence included a reduction to SSG, a $30,000.00
fine and forfeiture of $500.00 per month for 11 months, which totaled
$35,500.00; however, the sentence made no mention of restitution and he
asserted that the debt amount of $56,054.01 was incorrect.

8.  On 6 March 2004, a DFAS Fiscal Quality Specialist, Directorate of Debt
and Claims Management, Denver Center, responded to the applicant's 24
February 2004 inquiry.  He indicated that the applicant's account had been
reexamined and it was determined that the principle debt of $56,054.01 was
correct.  The applicant was further informed that his debt was due to
travel-pay debt and a fine imposed by his GCM.

9.  The DFAS official further indicated that the documentation provided by
the applicant confirmed the GCM convening authority had agreed to
disapprove confinement, punitive discharge, and any reduction below SSG.
However, the plea agreement indicated that any other lawfully adjudged
punishment, to include a fine, could be approved.  Further, there was not
indication that the travel pay debt would not be collected.  The applicant
was advised that if he had documentation showing that only $10,000.00 could
be collected, it should be forwarded to DFAS for reexamination of his
account.

10.  On 29 July 2004, the applicant submitted an electronic mail (e-mail)
message to the Commander, USATC and Fort Irwin, outlining his case and his
supporting arguments for clemency.

11.  On 24 August 2004, the Fort Irwin SJA responded to the applicant's
request to the Fort Irwin Commander.  He indicated that although it was not
final at the time, the underlying GCM conviction resulting in the
applicant's fine and forfeiture of pay was still pending appellate review
and the Commander of Fort Irwin no longer had jurisdiction in his case.  He
further indicated that mitigating factors and extenuating circumstances
raised by the applicant were considered by the Commander of Fort Irwin when
the applicant's 26 March 2003 request for clemency was considered before
approving the applicant's sentence.


12.  The Fort Irwin SJA also stated that in addition to the fine and
forfeiture of his GCM sentence, the NTC Defense Military Pay Office
deducted the amount of travel fraud overpayment, which was separate from
the sentence imposed by the Military Judge.

13.  Title 10 of the United States Code, section 1552 as amended does not
permit any redress by this Board of the finality of a court-martial
conviction and empowers the Board to only change a discharge if clemency is
determined to be appropriate.

14.  Title 10 of the United States Code, section 3964, provides the legal
authority for advancement on the Retired List.  It states, in pertinent
part, that retired soldiers are entitled to, when their active service plus
service on the retired list totals 30 years, to be advanced on the Retired
List to the highest grade they held and in which they satisfactorily served
while on active duty as determined by the Secretary of the Army.

15.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade
Determinations) establishes policies, procedures, and responsibilities of
the Army Grade Determination Review Board (AGDRB) and other organizations
delegated authority to make grade determinations on behalf of the Secretary
of the Army (SA).  Paragraph 2-4 outlines grade determination
considerations.  It states, in pertinent part, that service in a higher
grade will normally be considered unsatisfactory if reversion to a lower
grade was expressly for prejudice or cause; owing to misconduct; caused by
nonjudicial punishment pursuant to UCMJ,
Art. 15; or the result of the sentence of a court-martial.  It also states
that service will be considered unsatisfactory if there is sufficient
unfavorable information to establish that the Soldier's service in the
grade in question was unsatisfactory.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the total amount of his debt that
resulted from his GCM sentence and repayment of his travel debt was too
harsh was carefully considered.  However, the evidence of record confirms
the applicant voluntarily entered into a plea agreement to avoid the
possibility of receiving a punitive discharge, which could have resulted in
him losing his retirement benefit; and to avoid being reduced below the
rank of SSG.

2.  Although the applicant did not provide his actual plea agreement
document, the information he does provide confirms his plea agreement
allowed for his reduction to SSG, his fine of $30,000.00, and his
forfeiture of $500.00 per month for 11 months.  It did not preclude the
normal collection of the fraudulent travel claim money due the Government,
which totaled $33,728.91, and was a separate action from the sentence
imposed as a result of his GCM.

3.  By law, any redress by this Board of the finality of a court-martial
conviction
is prohibited.  The Board is only empowered to change a discharge if
clemency
is determined to be appropriate to moderate the severity of the sentence
imposed.

4.  After a thorough and comprehensive review of the applicant's record, it
is concluded that given the seriousness of the offenses for which he was
convicted, which demonstrated a serious betrayal of the trust placed in him
by the Army as a senior noncommissioned officer, and voluntary acceptance
of a plea agreement that allowed for the imposition of the sentence
imposed, clemency would be inappropriate in this case.

5.  The applicant's request for advancement on the Retired List was also
carefully considered.  However, by law and regulation, advancement is only
authorized to a grade in which the member's service was determined to be
satisfactory.  Service is normally considered unsatisfactory when reversion
to a lower grade is the result of the sentence of a court-martial.  It is
also considered unsatisfactory when there is sufficient unfavorable
information to establish that the Soldier's service in the grade in
question was unsatisfactory.

6.  The applicant's record confirms his reduction from the rank of MSG was
the result of a court-martial sentence, and that he committed the offenses
for which he was found guilty while he held the rank of SFC.  Therefore,
his service in both of these ranks is unsatisfactory, and his advancement
to a rank above SSG on the Retired List would not be appropriate.

7.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___HOF _  ___WFC_  __DED__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  _____Hubert O. Fry_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010068                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/02/13                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2003/06/30                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |129.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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