IN THE CASE OF:	  

		BOARD DATE:	        26 FEBRUARY 2009

		DOCKET NUMBER:  AR20080012930 


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 requests that he be granted full clemency from his court-martial conviction, that he be promoted to the pay grade of E-8, that he be awarded the Purple Heart with two oak leaf clusters (2OLC), that he be awarded a Bronze Star Medal (BSM) and Army Commendation Medal (ARCOM) with "V" device, that all lost time be removed from his records and that a Noncommissioned Officer Evaluation Report (NCOER) be removed from his official military personnel file (OMPF).

2.  The applicant states, in multiple applications and an 18-page and five-page memorandum, in effect, that he was unjustly prosecuted without any regard for his severe mental and physical problems at the time, i.e., severe post-traumatic stress disorder (PTSD), memory loss, chronic migraines, loss of vision (likely due to traumatic brain injury (TBI)) and severe and chronic pain.  He goes on to state that had he not been unjustly prosecuted, he would in all likelihood have been promoted to the pay grade of E-8.  He also states that he has subsequently been diagnosed as suffering from a TBI and should be awarded an additional Purple Heart for that injury.  He further states that he was recommended for an award of the BSM and the ARCOM with "V" Device; however, he has never received those awards.  He continues by stating in a five-page memorandum that the NCOER he received during the period of November 2003 to October 2004 is factually and substantially inaccurate and includes prohibited comments and personal bias that precludes him from receiving a subjective evaluation.  He also states that he returned from Afghanistan to attend a Medical Evaluation Board (MEBD) and concludes by stating that he served his country honorably on multiple deployments as a Special Forces (SF) Soldier and contends that his record of service to his country does not support the actions taken against him when his medical conditions are taken into account.

3.  The applicant provides an 18-page and five-page memorandum explaining his application and 71 enclosures listed on an enclosure sheet.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 16 April 1974 and enlisted in the Oklahoma Army National Guard (OKARNG) on 17 March 1993.  He completed his basic training at Fort Sill, Oklahoma, and his advanced individual training as a plumber at Fort Leonard Wood, Missouri, before being returned to his OKARNG unit.

2.  On 5 October 1994, he enlisted in the Regular Army for a period of 3 years and assignment to Fort Polk, Louisiana.

3.  In 1996, the applicant applied for and was accepted into the Bonus Extension and Retraining (BEAR) Program into military occupational specialty 18C (SF Engineer Sergeant).  He completed his airborne training at Fort Benning, Georgia, and was transferred to Fort Bragg, North Carolina, to undergo his SF training.  He was promoted to the pay grade of E-5 on 24 July 1997 and to the pay grade of E-6 on 1 December 1998.

4.  He was transferred to Fort Campbell, Kentucky, on 21 May 1999 for assignment to the 5th SF Group and remained there until January 2001, when he was transferred back to Fort Bragg for assignment to the 3rd SF Group.  He was promoted to the pay grade of E-7 on 1 October 2002.

5.  On 15 May 2004, the applicant and his commander were deployed to Afghanistan as the advanced party of the Operational Detachment Alpha (ODA) and both members served as the financial team for the ODA.  The applicant was designated as the paying agent and the commander was designated as the financial ordering officer.  Both individuals attended an operational fund (OPFUND) briefing in which it was explained that OPFUND money was restricted to the Afghanistan area of operations and required that all fund accounts be cleared before leaving country.  The applicant was responsible for drawing all OPFUNDS for the ODA and had authority to draw as much as $50,000 for each draw, all in $50 and $100 denominations.  However, before he could draw additional funds, he had to certify that all previous funds had been expended.  He was responsible for the distribution and accountability of all OPFUNDS for his ODA.  It appears that he was authorized to draw funds in two separate locations up to a maximum of $100,000.

6.  On 8 July 2004, the applicant submitted a request to be discharged early in order to attend Northeastern State University.  He also requested terminal leave to be effective 28 October 2004.  Both requests were approved.  His expiration of term of service at that time was 18 March 2005.

7.  On 25 August 2004, the applicant drew $50,000 against the blanket purchasing agreement (BPA) account and on 15 September 2004, while clearing Afghanistan with his replacement, he provided two invoices from contractors totaling $50,000 to clear his BPA account, indicating that he had expended all of the funds he had been issued.  His replacement was briefed on the use of OPFUNDs at that time and assumed responsibility for a new account.  OPFUNDs are money drawn to cover unforeseen day-to-day expenses to pay for goods and services in support of the operations of a team/unit that cannot be obtained through the normal supply system at all or in a timely manner.  The applicant gave his replacement $50,000 with instructions that the money was to be used to run the base until the end of the month when he (the replacement) could draw OPFUNDs.

8.  Prior to departing the command, the applicant's commander told the applicant to leave his weapons and sensitive (accountable) items at the location from which he departed and to notify him (the commander) by electronic mail as to their location so that they could be retrieved and accounted for.  These items included his M-9 pistol, an M-4 rifle with 203 (grenade launcher), a radio, and night vision goggles.  The applicant turned in all of his sensitive gear except his M-9 pistol, which he took with him when he departed Kandahar, Afghanistan, on or about 16 September 2004.

9.  On 17 September 2004, at approximately 1200 hours, while attempting to depart Baltimore-Washington International Airport, Transportation Security Agency officials were alerted when the applicant's bag set off the alarm at the 
X-ray machine.  The bag was opened and it was discovered that the applicant's bag (pelican case) contained $50,000 in cash, an M-9 pistol, and a laptop computer.  Customs officials of Immigrations and Customs Enforcement (ICE) were summoned and introduced to the applicant.  The ICE officials explained that they were there to investigate the money and the handgun and informed the applicant that he was not being detained.  They proceeded to the ICE office, which was a secure area 3 or 4 minutes away from the baggage area.  During the walk to the ICE office, the applicant indicated that he intended to get out of the Army and start a chicken farm.  The applicant explained that he did not declare the funds because it was government money and he was told overseas that he did not have to declare the money.  He also states that he simply forgot to declare the weapon.  He was informed that while he was free to go, the suitcase would have to remain until it was cleared.  Meanwhile, Army Criminal Investigation Command (CID) officials were notified to verify the applicant's authority to carry the money and weapon.  The applicant agreed to fill out the necessary paperwork to declare the money.  He also stated that the currency was Army money to buy equipment for his unit.  He also stated that the Army had a large amount of money overseas and that they would use it to pay off the foreign war lords but would not use it to take care of Soldiers.  The CID officials subsequently received verification from the applicant's unit that he was not authorized to be carrying the money in question.

10.  After the Assistant United States Attorney authorized prosecution, the applicant was advised of his rights at 1824 hours, arrested and taken to Baltimore Central Booking.  Meanwhile, the applicant had left his rucksack in the ICE office and, on 20 September 2004, officials in that office inventoried the contents of the rucksack at the request of military members from the applicant's unit and discovered that it contained in excess of $38,000 in cash.  The denominations were $50 and $100 bills.  The contents were inventoried and photographed.  The applicant's rucksack and other possessions were turned over to members of the applicant's unit.

11.  On 20 September 2004, the applicant appeared before a Federal magistrate in the Federal District Court of Maryland and was released without bond subject to the following conditions:  return to Fort Bragg; comply with restrictions imposed by the commander, to include moving into the barracks with some liberties revoked; to turn in passport and all personally owned firearms; and to remain in the vicinity of Fort Bragg.  Additionally, he was required to appear in the Federal District Court of Maryland on 8 October 2004.  The applicant returned to Fort Bragg on 20 September 2004 and complied with all limitations imposed by the Federal Magistrate Court.

12.  Although there were no violations of his restrictions, the applicant was ordered into pre-trial confinement by his commander on 21 September 2004.

13.  On 1 October 2004, a commander's inquiry was completed in Afghanistan regarding allegations of misconduct by the applicant.  The investigating officer determined that the applicant had improperly managed OPFUNDs, that he improperly possessed OPFUND money after he had cleared finance, and that he had no authority to carry a weapon back to the United States.  He recommended that the matter be turned over to CID for further investigation and likely prosecution under the Uniform Code of Military Justice.

14.  On 25 January 2005, an annual NCOER was prepared that evaluated the applicant as an SF engineer sergeant during the period of November 2003 through October 2004.
15.  In Part IVa., under Army Values, the applicant's rater gave him "NO" ratings under "Loyalty," "Selfless Service," "Honor," and "Integrity."  The supporting bullet comments indicate that "he shows through his actions, only loyalty to himself," "self-serving individual, his values are not the Army's," and "lied on accounting of funds and conspired to cover his actions."

16.  In Parts IVb, c, d, and f, under Values/NCO Responsibilities, the rater gave the applicant "Needs Improvement" ratings under "Competence," "Physical Fitness and Military Bearing," "Leadership," and "Responsibility and Accountability."  The bullet comments included "violated Federal law by not declaring over $10,000 in cash and a pistol prior to entrance into the United States," "investigated for misappropriation of government funds while acting as Pay Agent for his Detachment," "questionable military bearing, may look like a Soldier but actions are suspect," "set a bad example for others by committing a felony and attempting to implicate his detachment commander," "displayed extremely substandard mission focus during OEF [Operation Enduring Freedom] rotation by consistently attempting to leave the deployment early," "forged documents and misrepresented accountability of his OPFUND, resulting in a complete investigation of his actions," and "offended the reputation of his detachment by his actions."

17.  In Part V, under Overall Performance and Potential, the rater gave the applicant a marginal rating for overall potential for promotion and/or service in positions of greater responsibility.  The senior rater (SR) gave him a "Poor" rating under both potential and performance.  The SR comments indicate that the applicant does not rate any consideration for promotion, that he should be administratively removed from the service, that he disgraced his detachment, battalion, group, and the Special Operations Forces community by his self-serving actions, and that removal from SF is warranted.  There is no evidence in the available records to show that the applicant ever appealed that NCOER to the Enlisted Special Review Board.

18.  On 22 February 2005, charges were preferred against the applicant for willfully disobeying a lawful command from a superior commissioned officer to leave his weapon in the theater, for stealing military property valued at greater than $500, for making a false official statement, and for attempting to evade currency reporting requirements.

19.  On 29 March 2005, a Sanity Board convened to inquire as to the competency, mental responsibility, and psychiatric diagnosis of the applicant.  The board determined that at the time of the alleged criminal conduct, the applicant was able to appreciate the nature and quality of the wrongfulness of his conduct, and that he was presently able to understand the nature of the proceedings against him and conduct or cooperate intelligently in his own defense.  The board also opined that at the time of the alleged offenses, the applicant's clinical diagnosis was:

Axis I:  PTSD
Axis II:  antisocial and narcissistic personality traits
Axis III:  chronic neck, shoulder, and back pain
Axis IV:  occupational, partner-relational, and legal problems
Axis V:  65

20.  On 13 May 2005, the United States Department of Homeland Defense, United States Customs and Border Protection Agency, dispatched a letter to the applicant informing him that because he had failed to respond to the notification dated 7 October 2004 informing him that ICE, Baltimore, Maryland, had seized $91,158 in United States currency and one postal money order in the amount of $300 that was not properly reported, forfeiture procedures would be commenced. 

21.  On 17 May 2005, an Article 32 investigation was conducted at Fort Bragg to make a recommendation to the convening authority concerning the disposition of charges against the applicant.  The applicant was represented by military counsel.  The investigating officer recommended that the case proceed to trial by general court-martial.

22.  On 13 June 2005, during an Article 39(a) session, the applicant pled not guilty to all charges.  He also elected trial by judge alone.

23.  On 11 July 2005, the Article 39(a) session reconvened and the judge granted the civilian defense counsel's motion to suppress statements made by the applicant when he was taken to the ICE office and before his Miranda rights were read to him.

24.  The Article 39(a) session was reconvened on 12 July 2005 to receive testimony and recessed at 1818 hours.  It reconvened at 1307 hours on 13 July 2005 and defense counsel made a motion to suppress or exclude information regarding the funds found in the rucksack.  The judge granted the defense's motion.

25.  After hearing all of the testimony and reviewing the evidence, the judge announced that the applicant was not guilty of willful disobedience of a superior commissioned officer, but was guilty of failure to obey a lawful order.  He also found that the applicant was not guilty of charges II and III.

26.  On 14 July 2005, the session reconvened and the judge sentenced the applicant to be reduced to the pay grade of E-4 and confined for 4 months.  On 5 January 2006, the convening authority approved only so much of the sentence as provided for reduction to the pay grade of E-5 and confinement for 4 months.

27.  In June 2006, the applicant filed a complaint with the SF Command Inspector General alleging that he had been recommended for award of the BSM with "V" Device for actions in Afghanistan on 16 June 2004 and that the recommendation had been lost when he was thought to be in legal trouble.  The complaint was forwarded to the Special Operations Command IG for appropriate action; however, the applicant has not provided the outcome of his complaint.

28.  Authority was granted to retain the applicant on active duty pending medical evaluation and, on 1 August 2006, a Physical Evaluation Board (PEB) convened in Washington, D.C., and determined that the applicant suffered from PTSD, secondary to multiple deployments in Afghanistan, Iraq, and Haiti (30 percent); myofascial pain syndrome (20 percent); and migraine headaches with aura (10 percent) for a total combined rating of 50 percent.  The PEB recommended that he be placed on the Temporary Disability Retired List (TDRL) with reexamination in January 2008.  The applicant did not concur with the findings and recommendations of the PEB and demanded a formal hearing of his case.  The results of his nonconcurrence are not present in the available records.  However, his records do show that he was honorably released from active duty in the pay grade of E-5 on 7 June 2007 and was transferred to the TDRL due to temporary disability.  He had served 12 years, 8 months, and 29 days of total active service.

29.  On 16 October 2007, the Office of the Judge Advocate General (Criminal Law Division) notified the applicant that the appellate examination of his general court-martial had been completed and that the findings and sentence in his case were final and conclusive.

30.  On 20 March 2008, the Department of Veterans Affairs (VA) granted the applicant a 100 percent disability rating effective 7 June 2007.

31.  On 26 June 2008, the VA opined that the applicant has residuals of multiple traumatic brain injuries.

32.  A review of the available records fails to indicate when the applicant was flagged (suspension of favorable personnel actions).  Additionally, a review of the available records fails to indicate that the applicant requested a commander’s inquiry be conducted regarding the contested NCOER.

33.  Army Regulation 600-8-22, Military Awards, provides that a medal will not be awarded or presented to any individual whose entire service subsequent to the time of the distinguished act, achievement or service has not been honorable.  The determination of "honorable service" will be based on such honest and faithful service according to the standards of conduct, courage, and duty required by law and customs of the service of a member of the grade to whom the standard is applied.  Commanders will ensure that individuals on whom favorable personnel actions have been suspended neither are recommended for nor receive awards during the period of suspension.

34.  Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the 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.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

35.  Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.

36.  Army Regulation 623-205, Noncommissioned Officer Evaluation Reporting System, in effect at the time, set forth the policies and procedures for the Enlisted Evaluation Reporting System.  It provides, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to represent the considered opinion and objective judgment of rating officials at the time of preparation.

37.  Paragraph 4-7 of that regulation states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he or she must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

38.  Field Manual 22-100, Army Leadership, describes leadership as that which affirms Army values of loyalty, duty, respect, selfless service, honor, integrity, and personal courage.



DISCUSSION AND CONCLUSIONS:

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

2.  The applicant's contention that he was unjustly court-martialed when he was suffering from PTSD has been noted and found to lack merit.  While the applicant may have indeed been suffering from PTSD, the evidence of record clearly shows that at the time he was apprehended with an unauthorized weapon and $90,000+ in government funds, which he had managed to fraudulently siphon off from the OPFUNDs which he was responsible for, he was mentally responsible and able to distinguish right from wrong.  In other words, he knew what he was doing at the time.

3.  Notwithstanding that the applicant was found not guilty of the charges surrounding the funds because his rights were not read to him immediately at the airport when the funds were discovered, the fact remains that he obtained and illegally transported government funds in excess of $90,000 for his own personal gain that was subsequently seized by government officials.  While the applicant may have a reasonable explanation for such actions, he has yet to provide a reasonable explanation for why he had the money in his possession when he arrived in the United States.

4.  Therefore, the evidence of record suggests that the applicant violated the trust placed in him as a Soldier and noncommissioned officer (NCO) and that he sought to defraud the government for his own personal gain.  Accordingly, he is not entitled to any clemency for his actions or removal of the lost time for confinement and he is not entitled to be promoted to the pay grade of E-8, as he did not satisfactorily serve in the pay grade of E-7, as evidenced by his actions.

5.  The applicant's contention that he is entitled to awards of the BSM and the ARCOM with "V" Device has been noted.  However, it is also reasonable to presume that the applicant was placed under a suspension of favorable personnel actions immediately after he was apprehended at the airport and that if submitted, the awards recommendations were returned without action to the originating officials.  Given the facts and circumstances surrounding his misconduct, it is reasonable to presume that the recommendations were not resubmitted.  Accordingly, there is no basis to award them to him at this time.

6.  The applicant's contention that he is entitled to an additional award of the Purple Heart for TBI has been noted and found to lack merit.  While the applicant has provided documents which show that he has been diagnosed by the VA as suffering from multiple TBIs, there are no provisions at this time to award the Purple Heart for a TBI.  Therefore, since the applicant has not provided evidence that satisfies the requirement for award of the Purple Heart, i.e., wounded as a result of enemy action, treated by medical personnel for said wound/injury, and treatment made a matter of record, there appears to be no basis to award him another award of the Purple Heart at this time.

7.  The contested NCOER appears to represent a fair, objective, and valid appraisal of his demonstrated performance and potential during the period in question.  The report also appears to have been prepared in accordance with the applicable regulation and by the appropriate rating officials.

8.  The applicant’s contention that the contested NCOER is biased and that it does not accurately reflect his performance and potential during the period in question has been noted and found to be without merit.  The fact remains that he violated the trust placed in him as the senior NCO of his unit by both his superiors and subordinates alike.  It is apparent that his rating chain took the matter very seriously and believed that his conduct in the matter was serious enough to diminish the quality and degree of his overall performance and potential during the period in question.  The contested report does reflect his contribution during the period in question; however, it also reflects his performance, which was tainted by his misconduct during the period in question.

9.  The applicant, despite his positive contributions to his unit, was placed in one of the most important leadership positions in the Army and failed to uphold the Army’s values and demonstrate the proper ethics of his position as an SF operative in a combat zone and senior NCO in the Army.  Additionally, he has failed to provide clear and convincing evidence sufficient to warrant voiding the report.  Therefore, there is no basis for removing the report from his OMPF.

10.  The applicant's contention that he was returned from Afghanistan to attend an MEBD has been noted and found to lack merit.  The applicant was returned based on his own request for early separation to attend school.  There is no indication in the evidence of record to suggest that he was returned due to medical conditions that rendered him unable to perform his duties.

11.  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

___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 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)                                         AR20080012930





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ABCMR Record of Proceedings (cont)                                         AR20080012930



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