IN THE CASE OF:	  

	BOARD DATE:	  17 July 2008

	DOCKET NUMBER:  AR20080002172


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant defers his request to counsel.

2.  The applicant makes his statement(s) through counsel.

3.  The applicant provided additional documentary evidence through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, clemency in the form of remittance of the applicant’s dismissal from the Regular Army, as a result of General Court-Martial, and allowing the applicant to either retire in the lower grade or to receive Veterans Administration (VA) medical benefits.

2.  Counsel states:

	a.  the Army Board for Correction of Military Records (ABCMR) has broad authority to correct errors and injustices and has significant leeway to grant clemency to recognize the applicant’s distinguished military service, allow him treatment for Post Traumatic Stress Disorder (PTSD), and correct an injustice.  In the applicant’s case, there are three distinct forms of relief the ABCMR can provide:

		(1)  remit the dismissal and allow the applicant to retire as a colonel; or

		(2)  remit the dismissal and allow him to retire as a lieutenant colonel or in a grade to be determined by the Army Grade Determination Review Board (this is the relief requested and supported by others); or

		(3)  substitute an administrative general discharge for the executed dismissal.

	b.  the record upon which the Assistant Secretary of the Army for Manpower and Reserve Affairs (ASA(M&RA)) denied the applicant’s clemency request was prepared in a manner that minimized favorable information, thus depriving the applicant full and fair consideration for clemency, as follows:

		(1)  the military judge, one of the most experienced trial judges in the Army, recommended the sentence be suspended in its entirety;

		(2)  the convening authority initially approved the applicant’s sentence; however, recognizing that the Army obtained the necessary benefit of deterrence and conviction and the applicant’s confinement, he recommended the ASA(M&RA) set aside the applicant’s dismissal;

		(3)  General B____ (Assistant Judge Advocate General for Military Law and Operations) recommended clemency, on behalf of the Office of the Judge Advocate General (TJAG) and prepared the memorandum for the ASA(M&RA) recommending the adjudged dismissal be set aside; however, General B____ changed assignments and the court-martial approval package was not submitted until 18 months later; and

		(4)  General R____, who replaced Gen B____, edited, revised, and changed the memorandum for the ASA(M&RA), recommending dismissal; however, the new memorandum contained critical dissimilarities to the original memorandum submitted by General B____ and minimized extremely favorable information supporting the applicant’s clemency request.  General R____ recommended approval of the sentence; deleted the entry that the military judge, one of the most experienced trial judges in the Army, recommended suspension of the dismissal; deleted the entry that the convening authority, after the sentence approval, recommended the ASA(M&RA) not approve the sentence; deleted the entry that the applicant had a spotless and outstanding military career prior to these incidents; deleted the entry that the applicant made full restitution to the Consolidated Chaplain’s Funds (CCF) by selling his home, personal possessions, and borrowing from relatives; deleted the entry that there was no evidence the applicant spent the money on anything other than gambling; deleted the entry that the applicant’s family would suffer financial hardship if the dismissal was approved; and deleted the entry that the remission of dismissal would provide the applicant an opportunity to continue medical and psychiatric care with the VA.

	c.  the applicant has a distinguished and an exceptional career, including three combat tours and multiple assignments with the Army’s elite Rangers and Special Forces; he was awarded the Purple Heart and three Bronze Stars, one of which with “V” Device.  Furthermore, the applicant’s exposure to hostile fire in numerous combat settings, including an incident of witnessing comrades die, caused him to suffer from PTSD, which has been linked to his gambling compulsion; he continues to be at risk of suffering from emotional disorder, and is vulnerable to committing further financial crimes.  After the applicant’s release from confinement, medical experts certified that he will likely require significant therapeutic treatment for the rest of his life, and without access to such treatment, he will be unable to control the manifestation of his illness.  The VA has the most widespread PTSD treatment programs, tailored to military-related trauma, with no comparable health care in the civilian sector;

	d.  the applicant took full responsibility for his actions and experienced remorse and guilt; he further voluntarily, and without any legal responsibility, sold his family’s possessions and borrowed money to make restitution; and he attends group counseling session for compulsive gamblers.  Furthermore, there have been cases in the past where military Boards for correction of records granted clemency to deserving service members, particularly highly decorated veterans; and

	e.  the applicant was not afforded a meaningful opportunity for clemency when the ASA(M&RA) approved the dismissal.  The memorandum submitted by General R____ minimized key information, noticeably, the trial judge, the convening authority, and the chief of chaplains all recommended setting side the dismissal; the applicant took responsibility for his actions, completed his confinement, and voluntarily made restitution; and he would not be able to obtain medical treatment for his military-related PTSD if his dismissal was approved.  Therefore, the applicant’s dismissal should be remitted and the applicant should be retired as a lieutenant colonel based on injustice and as an act of clemency. In the alternative, he should receive a general administrative discharge.

3.  Counsel provided the following additional documentary evidence in support of the applicant’s request: 

	a.  Complete Record of Trial.

	b.  ASA(M&RA) Decision Packet.

	c.  Counsel Brief and Allied Documents.

CONSIDERATION OF EVIDENCE:

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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  In September 1998, the applicant was assigned as the Installation Staff Chaplain, Fort Bliss, Texas.  In that capacity, the applicant had oversight responsibility for the installation CCF.  The CCF is a non-appropriated account consisting of money received as offerings in conjunction with worship services.  The applicant used his position to commit larceny from the fund by instructing the CCF clerk, a junior private first class, to write checks on the account for the purchase of religious books and pamphlets, made payable to a fictitious entity, created by the applicant.  The applicant submitted hand-written purchase requests to the CCF clerk and requested the checks be given directly to him.  The applicant took the checks, deposited them into the fictitious entity’s bank account, and ultimately withdrew the money and used it for his personal use, mainly, gambling.

3.  The applicant's records show that he was appointed as a captain in the Chaplain Corps on 6 July 1976.  He was promoted to major on 1 May 1984, lieutenant colonel on 1 December 1991, and colonel on 3 June 1997.  He is a graduate of the Special Forces Qualification Course, the Jumpmaster Course, the Ranger Course, the Command and General Staff College, and other military courses.  Furthermore, prior to his incident, he was selected to attend the Senior Service College (War College).

4.  The applicant’s assignments include several staff positions, mainly, with the XVIII Airborne Corps, Fort Bragg, North Carolina; 1st Infantry Division, Korea; 75th Ranger Regiment, Fort Lewis, Washington; 3d Special Forces Group, Fort Bragg, North Carolina; and the 82d Airborne, Fort Bragg, North Carolina.  Furthermore, the applicant served in three combat tours:  Grenada, Panama, and Southwest Asia (Gulf War).

5.  The applicant’s major awards and decorations include three awards of the Bronze Star Medal, one of which with “V” Device, nine awards of the Meritorious Service Medal, the Air Medal, five awards of the Army Commendation Medal, the Ranger and Specials Forces Tabs, and several joint awards.  Furthermore, the applicant states that he was awarded the Purple Heart for wounds received in action in Panama; however, it is not documented on his Officer Record Brief.

6.   On 22 July 1999, the applicant pled guilty at a general court-martial to:

	a.  three specifications of making a false official statement, between 21 April 1999 and 6 May 1999, and with intent to deceive, by making official statements to subordinate Soldiers and noncommissioned officers, that he had ordered and intended to purchase religious pamphlets, books, and materials; that he needed money from the CCF to pay for these religious pamphlets, books, and materials; that he intended to pay for the religious items with checks from the CCF; and that he received religious books and pamphlets on behalf of the CCF; and on or about 5 May 1999, with intent to deceive, made to subordinate officers and noncommissioned officers official statements that he had purchased religious books with funds from the CCF, and that he had received and distributed the religious books to the various chaplains, all of which statements were totally false, and were known to the applicant to be false; and

	b.  fourteen specifications of larceny, on miscellaneous dates, between 22 September 1998 and 30 April 1999, in amounts ranging from $2,122.00 to $9,662.00, and totaling $73,557.75.

7.  The Court found the applicant guilty of all charges and specifications and sentenced him to forfeiture of pay and allowances, confinement for 6 months, and dismissal from the service.  The Court also recommended the sentence be suspended.  The sentence was adjudged on 22 July 1999.

8.  On 5 October 1999, the convening authority approved the sentence of confinement and dismissal and disapproved the adjudged forfeiture of pay, and except for that portion of the sentence pertaining to dismissal, he ordered the sentence executed.  He also waived the automatic forfeiture of pay and allowances for six months, beginning on 5 October 1999.

9.  On 22 March 2002, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

10.  On 10 December 2002, the U.S. Court of Appeals of the Armed Forces denied the applicant’s petition for grant of review.

11.  On 6 October 2004, the ASA(M&RA) approved the applicant’s sentence as affirmed by the U.S. Court of Criminal Appeals and ordered the sentence executed.

12.  On 15 November 2004, the Chief of Staff, Army, by order of the Secretary of the Army, ordered the applicant dismissed from the Army at midnight on 15 November 2004.

13.  The DD Form 214 the applicant was issued at the time of his dismissal shows he was dismissed from the Army on 15 November 2004, as a result of court-martial, in accordance with paragraph 5-17, Army Regulation 600-8-24 (Officers Discharge), with a character of service of under other than honorable conditions.  This form further shows the applicant completed 27 years, 10 months and 11 days of creditable active military service, and had 180 days of lost time due to confinement. 

14.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of Army officer personnel.  Paragraph 5-17 of the regulation states, in pertinent part, that an officer convicted and sentenced to dismissal as a result of general court-martial proceedings will be processed pending appellate review of such proceedings.  A Regular Army officer will be retained on active duty until the appellate review is completed or placed on excess leave in accordance with governing regulation.

15.  Paragraph 1-22 of Army Regulation 600-8-24 defines the types of an officer’s characterization of service:

	a.  Honorable characterization of service (HD).  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 under DOD Directive (DODD) 
5200.2-R and Army Regulation 380-67 (The Department of the Army Personnel Security Program) for reasons that do not involve acts of misconduct, for an officer.  Department of Defense (DD) Form 256A (Honorable Discharge Certificate) will be furnished to a discharged officer; however, a certificate is not issued when an officer is released from AD.  When the separation is based solely on pre-service activities, substandard performance of duty, or final revocation of a security clearance under DODD 5200.2–R and Army Regulation 380–67 for reasons that do not involve acts of misconduct, it will be Honorable.

	b.  General Under Honorable Conditions characterization of service (GD). 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.  A separation under honorable conditions will normally be appropriate when an officer:  submits an unqualified resignation or a request for release from active duty under circumstances involving misconduct; is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an Under Other Than Honorable Conditions separation is appropriate; is discharged for physical disability resulting from intentional misconduct or willful neglect, or which was incurred during a period of unauthorized absence; is discharged for the final revocation of a security clearance under DODD 5200.2-R and Army Regulation 380-67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed, unless a discharge Under Other Than Honorable Conditions is appropriate.

	c.  Under Other Than Honorable Conditions characterization of service (OTH).  A discharge Under Other Than Honorable Conditions is an administrative separation from the service under conditions other than honorable.  A discharge certificate will not be issued.  An officer will normally receive an “Under Other Than Honorable Conditions” when they resign for the good of the service; are dropped from the rolls of the Army; or are involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance under DODD 5200.2-R and Army Regulation 380-67 as a result of an act or acts of misconduct, including misconduct for which punishment was imposed.

	d.  Dishonorable characterization of service.  A court-martial may sentence a warrant officer who is not commissioned to a Dishonorable Discharge.  A discharge certificate will not be issued.

	e.  Undetermined characterization of service.  An officer’s service will be characterized as “to be determined” when released from AD duty when being processed for elimination action.

	f.  No formal discharge certificate.  No formal discharge certificate will be issued when the officer is:  dropped from the rolls of the Army; dismissed as a result of sentence of court-martial; removed under the criminal code of the United States; discharged Under Other Than Honorable Conditions; separated with a dishonorable discharge (applies only to a warrant officer who does not hold a commission).



16.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s overall service record, to include his combat tours, challenging assignments, awards, and decorations are noted.  However, none outweighs the offenses for which he was discharged.  The applicant’s obligation to uphold the standards of behavior and ethical conduct of the service, the Soldier’s Creed, and the officer corps was multiplied by his rank, experience, branch, and years of service. 

2.  The applicant’s sentence is not harsh.  Furthermore, his post conviction difficulties are unfortunate, and his family suffers by sharing his circumstance; but, his situation, so far as it relates to the Army, is of his own making.  Despite the collateral consequences of his dismissal and the calls for clemency, given the applicant’s entire military record, gambling issues, financial difficulties, and the nature of the offenses, it is clear that his service did not meet the criteria for a general or an honorable discharge.

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.  The applicant’s conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

4.  With respect to the argument presented by the applicant’s counsel:

	a.  the applicant’s condition of PTSD is unfortunate; however, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact his local/regional VA representative to inquire about eligibility for and/or entitlements to VA benefits;

	b.  the applicant's post confinement adjustment, civic participation, enrollment in group counseling programs, offense-free conduct, and the voluntary restitution he made in an effort to right the wrong, are all noted; however, they are not so noteworthy as to warrant relief;

	c.  the applicant’s service record, awards, challenging assignments, combat experience, and gambling issues, were all considered in detail during the applicant’s court-martial.  The loss of retirement benefits and/or other benefits administered by the VA and the Army establishment is not a punishment.  The fact that counsel wishes to cast the same information in a different light does not change the basis of the nature and seriousness of the offense;

	d.  given the applicant’s prior military character, bravery, combat record, financial difficulties, mental conditions, and plea of guilty, it appears that the applicant already harvested the benefit of a clemency by not being sentenced to years of confinement and/or total forfeiture and a fine;

	e.  the fact that the military judge, one of the most experienced in the Army, recommended suspension of the dismissal does not indicate or suggest that the adjudged dismissal was in error, unjust, or inappropriately severe.  This is simply an acknowledgement by the military judge that exceptional circumstances exist that warrant clemency.  As the military judge's sentencing options are limited, he is unable to impose a conditional sentence involving a dismissal or set conditions concerning a suspended sentence.  The convening authority, however, has the authority under Rule for Court-Martial 1108 to set specific conditions on a suspension (i.e., restitution, treatment, or prohibitions from engaging in certain activities);

	f.  the fact that the convening authority and/or the Chief of Chaplains supported clemency at a later date does not imply, indicate, or suggest that there was an error or injustice.  The support for clemency was simply made to allow the applicant to receive some form of governmental support to deal with medical challenges.  Yet, again, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits; and

	g.  the ASA(M&RA) and his staff considered the applicant’s entire record during the decision making process.  Although the ASA(M&RA) was not bound by the original memorandum, the revised memorandum together with supporting documents captured all the facts and circumstances:

		(1)  the court-martial orders clearly indicated that the military judge recommended the sentence be dismissed;

		(2)  the convening authority’s statement did not suggest, imply, or indicate that the government actions were unlawful or inappropriate;

		(3)  the applicant’s PTSD was documented in the executive summary presented to the ASA(M&RA);

		(4)  the potential for financial hardship to the applicant and his family was very evident in the executive summary that recommended the dismissal; and

		(5)  although he was not required by law, the applicant was expected to make full restitution to the CCF in one way or another, and the fact that there was no evidence the applicant spent the money on anything other than gambling did not negate the fact that larceny was committed.

		(6)  In summary, the ASA(M&RA) was fully aware of the clemency issue in its entirety and made his educated decision based on the entire record.

5.  Contrary to what counsel implies, General R____, as the advisor/TJAG at the time of the action for the ASA(M&RA), was not bound by General B____'s draft recommendation.  He was free to recommend approval of the dismissal.  Also, contrary to counsel's implication, the applicant had no right under law or regulation to see and/or respond to General R____'s recommendations.

6.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


								XXX
      _______________________
      	  CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20080002172



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ABCMR Record of Proceedings (cont)                                         AR20080002172



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