IN THE CASE OF:	  

		BOARD DATE:	       12 February 2009

		DOCKET NUMBER:  AR20080018000 


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:

	a.  An upgrade of his bad conduct discharge to a general, under honorable conditions discharge;

	b.  An upgrade of his reentry (RE) code from RE-4 to RE-3; and 

	c.  Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

		(1)  Item 7b (Home of Record) to show the entry “3xx, North 5th Street, Emmaus, Pennsylvania (PA) 18049;

		(2)  Item 11 (Primary Specialty) to show he served in military occupational specialty (MOS) 31P3P (Satellite Communications Maintenance Team Chief) for 11 years, 1 month, and 22 days; in MOS 18E4LTH (Special Forces Communications Sergeant) for 5 years, 3 months, and 17 days; and that his total service in both specialties equals 16 years, 5 months, and 9 days; 

		(3)  Item 13 (Decorations, Medals, Badges and Campaign Ribbons Awarded or Authorized) to show award of the Korean Parachutist Badge and the Overseas Service Ribbon (3rd Award); 

		
		(4)  Item 14 (Military Education) to show he completed the Special Forces Assessment and Selection Course, the Basic Training Course, Advanced International Morse Code Course, Thailand Special Operations Forces Basic Military Language Course, the Antiterrorism Training Course, the Humanitarian Demining Course, the Advanced Noncommissioned Officer’s (NCO) Course, and the Special Forces Advanced NCO Course; and

		(5)  Item 19b (Nearest Relative) to show the city as Emmaus instead of Emmas; 

2.  The applicant states the following:

	a.  He made a mistake in that he mistakenly and unintentionally left certain items in his hotel room in Thailand that were consequently stolen.  He accepted the consequences of that mistake in that he pled guilty at a General Court-Martial and was sentenced to 6 months of confinement.  Nevertheless, an investigation of this incident noted that the Operational Detachment Alpha (ODA) inventory and accountability procedures lacked attention to detail and involvement by the ODA chain of command.  Furthermore, there was no written standing operating procedure (SOP) with respect to inventory and accountability and that leaders communicated their guidance verbally.  He also adds upon loss of the items, he was unofficially interrogated and pressured to sign statements by host nation military police with no U.S. representation; yet, he fully cooperated without obstructing justice.  Upon return to Fort Lewis, Washington, he again cooperated with the investigation despite having previously made an appointment to speak to a lawyer.  He also alleges that a 23 February 2004 inventory was inaccurate.  He ultimately consulted with legal counsel and waived his right to an Article 32 hearing based on the advice of his counsel.  Ironically though, he was ordered to watch sensitive items during a change of command inspection despite being prohibited from working with classified information and/or sensitive items.  He eventually pled guilty and was sentenced to confinement in a facility that was overcrowded, lacked privacy, favored serious criminals, and had an insufficient number of counselors.  Even post-trial processing was so lengthy it eliminated his chance of serving a reduced sentence.  He adds that upon his release, he and his pregnant wife experienced financial difficulties and relocated to Hawaii to live with extended family.  He concludes that he accepted full responsibility for his mistake and, in doing so, ruined his military career and accepted the appropriate punishment; 

	b.  When he enlisted in 1985, he listed his home of record as 3xx North 5th Street, Emmaus, PA, as shown on his enlistment contract; 

	c.  He was originally trained in MOS 31N (Communications Systems/Circuit Controller) in 1988, which was changed to 31P.  He adds that Orders 55-82, dated 24 February 2000, awarded him primary MOS 18E and secondary MOS 31P.  He served 11 years, 1 month, and 22 days in MOS 31P and 5 years, 3 months, and 17 days in MOS 18E; for a total of 16 years, 5 months, and 9 days; 

	d.  He received approval to accept and wear a foreign decoration (the Korean Parachutist Badge).  He also completed two overseas tours in Korea and one in Germany; 

	e.  He completed several military courses of various durations throughout his military career which are not listed on his DD Form 214; and

	f.  The city where his nearest relative lives is misspelled on his DD Form 214.

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Form 214, dated 20 July 2007;

	b.  Orders 192-0669, issued by U.S. Army Installation Management Command, Fort Sill, Oklahoma, on 11 July 2007; 

	c.  Twelve character reference letters by various individuals, dated on miscellaneous dates in 2006 and 2008;

	d.  Listing of deployments and training while assigned to ODA 154;

	e.  Page 1 of his DD Form 4 (Enlistment/Reenlistment Document), dated 24 February 1988;

	f.  DA Form 2166-7 (NCO Evaluation Report) for the period April 2002 through February 2003 and June 1998 through February 1999;

	g.  Ten certificates of training, dated on miscellaneous dates throughout his military service;

	h.  Orders 55-82, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina, on 24 February 2000;

	i.  Memorandum, dated 15 May 2002, acceptance and wear of foreign badge; 

	j.  Enlisted Record Brief (ERB), dated 9 November 2004;

	k.  DA Forms 1059 (Service School Academic Evaluation Report), dated 25 May 2000, 29 July 2003, and 23 October 2003;

	l.  Orders 173-21, issued by the Personnel Control Facility, Fort Sill, on
22 June 2005;

	m.  Notification of entitlements in connection with disciplinary action, dated 21 December 2005; and

	n.  DA Form 4856 (Developmental Counseling Form), dated 3 March 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 14 September 1988.  Item 3 (Home of Record) of his DD Form 4 shows his home of record as 3xx North 5th Street, Emmaus, PA 18049.  He completed the 9-week basic combat training course at Fort Jackson, South Carolina and the 24-week Communications Systems Circuit Controller Course at Fort Gordon, Georgia.  Upon completion of training he was awarded MOS 31N.

2.  The applicant’s records further show he executed a series of reenlistments in the Regular Army including a 2-year reenlistment on 8 June 1994, a 3-year reenlistment on 29 February 1996, a 4-year reenlistment on 21 October 1998, and an indefinite reenlistment on 5 April 1999.  He was promoted to staff sergeant (SSG)/E-6 on 1 December 1998 and sergeant first class (SFC)/E-7 on
1 June 2003.

3.  The applicant’s records also show that he completed the Basic Airborne Course in October 1991 and the 39-week Special Forces Qualification Course in November 1999.  He was awarded primary MOS 18E on 5 November 1999.  He also completed the Thai (TH) Special Operations Basic Military Language Course at the U.S. Army John F. Kennedy Special Warfare Center and School (USAJFKSWCS), Fort Bragg, from 15 November 1999 through 25 May 2000. 

4.  The applicant’s records also show he completed several overseas tours including tours in Germany, from June 1989 to September 1991; and Korea from December 1992 to November 1993 and from September 1996 to September 1997. 


5.  On 22 February 2005, the applicant pled guilty at a General Court-Martial to one specification of willfully disobeying an order from a superior commissioned officer to store all sensitive items in a vault and that no sensitive items were to be stored within the detachment’s living quarters without a 24-hour guard, between on or about 23 January 2004 and 22 February 2004; one specification of being derelict in the performance of his duties by willfully failing to properly secure sensitive communication equipment, between on or about 23 January 2004 and 22 February 2004; and one specification of making a false official statement with intent to deceive in that he had conducted a hands-on by serial number inspection and had 100 percent accountability of all sensitive equipment, on divers occasions between on or about 23 January 2004 and 22 February 2004.  The Court found him guilty in accordance with his pleas and sentenced him to reduction to private (PV1)/E-1, confinement for 9 months, forfeiture of all pay and allowances, and a bad conduct discharge.

6.  On 4 December 2005, the convening authority approved only so much of the applicant’s sentence as provides for reduction to PV1, confinement for 6 months, forfeiture of all pay and allowances, and a bad conduct discharge, and except for the part of the sentence extending to the bad conduct discharge, he ordered it executed.

7.  On an unknown date, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

8.  On 30 January 2007, the U.S. Court of Appeals for the Armed Forces denied the applicant's petition for a review.

9.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, General Court-Martial Order Number 86, dated 22 March 2007, show that the sentence to a bad conduct discharge, adjudged on 22 February 2005, as promulgated in General Court-Martial Order Number 23, dated 4 November 2005, has been finally affirmed and that the bad conduct discharge would be executed.

10.  The applicant was discharged from the Army on 20 July 2007.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 18 years, 5 months, and 16 days of creditable military service and had 140 days of lost time.  This form further shows the following entries:

	a.  Item 7b shows the entry 3xxx Pukalani Place, Emmas, Pennsylvania 18049; 
	b.  Item 11 shows he held MOS 18E4O, Special Forces Communications Sergeant, 16 years and 1 month; 

	c.  Item 13 shows he was awarded the Army Commendation Medal (4th Award), the Army Achievement Medal (4th Award), the Good Conduct Medal (5th Award), the National Defense Service Medal, the Global War on Terrorism Service Medal, the Global War on Terrorism Expeditionary Medal, the Korean Defense Service Medal, the NCO Professional Development Ribbon with Numeral 3, the Army Service Ribbon, the Overseas Service Ribbon, the Special Forces Tab, the Senior Parachutist Badge, and the Parachutist Badge.

	d.  Item 14 shows he completed the Advanced NCO Course, the Airborne Course, the Basic NCO Course, the Jumpmaster Course, the Primary Leadership Development Course, the Survival Evasion Resistance Escape (High Risk) Course, and the Special Forces Qualification Course. 

	e.  Item 19b shows his nearest relative lives at Emmas, Pennsylvania;

	f.  Item 24 (Character of Service) shows the entry Bad Conduct; and

	g.  Item 27 (Reentry Code) shows the entry “4.” 

11.  The applicant’s records show that he was issued a memorandum on 15 May 2002 by Headquarters, 1st Special Forces Group (Airborne), Fort Lewis, that authorized him to accept and wear the Korean Parachutist Badge.

12.  The applicant’s records show he completed the following military courses throughout his military career:

	a.  U.S. Army Training Center, 2nd Training Brigade, Fort Jackson, certificate of training, dated 17 November 1988, shows he completed the 9-week basic combat training course in November 1988;

	b.  U.S. Army Signal Center, Fort Gordon, Georgia, certificate of training, dated 1 June 1989, shows he completed the 24-week Communications Systems Circuit Controller Course, from 28 November 1988 to 1 June 1989;  

	c.  USAJFKSWCS, Fort Bragg, certificate of training , dated 27 February 1991, shows he completed the 3-week Special Forces Assessment and Selection Course from 6 February 1991 to 27 February 1991;

	d.  USAJFKSWCS, Fort Bragg, certificate of training , dated 5 May 1992, shows he completed the 8-week Advanced International Morse Code Course from 11 March 1992 to 5 May 1992;  

	e.  USAJFKSWCS, Fort Bragg, certificate of training , dated 25 May 2000, shows he completed the 27-week Thai (TH) SOF Basic Military Language from 15 November 1999 to 25 May 2000; 

	f.  U.S. Army Forces Command, Fort McPherson, Georgia, certificate of training, dated 14 June 2000, shows he completed a one-week Antiterrorism Training Course from 10 June 2002 to 14 June 2002;

	g.  Headquarters, Humanitarian Demining Training Center, Fort Leonard Wood, Missouri, certificate of training, dated 19 July 2002, shows he completed the 2-week Humanitarian Demining Course from 8 July 2002 to 19 July 2002; and

	h.  Headquarters, Training and Doctrine Command (TRADOC) System Manager, Fort Lewis, certificate of training,dated 31 January 2003, shows he completed the one-week AN/PSC-5 Spitfire Tactics, Techniques, and Procedures (TTP) and Advanced Demand Assigned Multiple Access (DAMA) Course from
27 January 2003 to 31 January 2003; 

13.  The applicant submitted 12 character reference letters and/or letters of recommendation/recognition, authored by various military and civilian individuals, in support of his application.  The authors essentially comment positively on the applicant’s integrity, loyalty, motivation, technical skill, and devotion to his family and community.

14.  Court-Martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records (ABCMR) 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.

15.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7b, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

16.  Army Regulation 635-200 states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-1, applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

	c.  RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

17.  Army Regulation 635-5 (Personnel Separations - Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of Army Regulation 635-5 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that:

	a.  Item 7b shows the home of record.  A Soldier’s initial enlistment contract or appointment document is the source for this data, or any approved change by the Army.  This entry shows the street, city, state and ZIP code listed as a Soldier’s home of record.  “Home of Record” is the place recorded as the home of record of the Soldier when commissioned, appointed, enlisted, or ordered to a tour of active duty.  This cannot be changed unless there is a break in service of at least 1 full day (Joint Federal Travel Regulations, Volume 1, App A, Part I).  Home of record is not always the same as the legal domicile as defined for income tax purposes.  Legal domicile may change during a Soldier’s career.


	b.  Item 11 shows the primary specialty and is obtained from the ERB (Enlisted Record Brief)/ORB (Officer Record Brief).  This entry shows the titles of all MOS served for at least 1 year and include for each MOS the number of years and months served.  For time determination, 16 days or more count as a month.  Basic and advanced individual training are not counted.

	c.  Item 13 lists awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22 (Military Awards) and each entry will be verified by the Soldier’s records.

	d.  Item 14 is obtained from the ERB/ORB and shows the Soldier’s Military Education by listing formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214.  This item includes title, length in weeks, and year completed.  This information is to assist the Soldier in job placement and counseling; therefore, do not list training courses for combat skills.

	e.  Item 19b lists the name and address of the Soldier's nearest relative.  Soldiers are advised that the name and address of a relative should be someone who will know their location and address at all times.  When a relative is not available, use a close friend.  

18.  Army Regulation 600-8-22 (Military Awards) provides that the Overseas Service Ribbon is awarded to members of the U.S. Army for successful completion of overseas tours.  Effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for this award.  Soldiers must be credited with a normal overseas tour completion according to Army Regulation 614–30 (Overseas Service).  Numerals are used to denote second and subsequent awards of the Overseas Service Ribbon.

19.  Army Regulation 600-8-22 provides that foreign decorations and badges may be authorized by authorized approval authorities for wear by U.S. military personnel.  Foreign qualification and special skill badges may be accepted if awarded in recognition of the criteria as established by the foreign government concerned.  Only those badges which are awarded in recognition of military activities and by the military department of the host country are authorized for acceptance and permanent wear.  The regulation specifically prohibits honorary badges from being authorized for wear or entry in official military records.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge and RE code should be upgraded and his DD Form 214 should be corrected.

2.  With respect to the applicant's discharge:

	a.  The applicant's self-authored statement as well as his submitted character reference letters were noted; however, they are not sufficiently mitigating in granting the requested relief.  The applicant was a senior NCO and a leader of Soldiers at the time he committed his offense;

	b.  The evidence of record shows that the applicant was convicted by a general court-martial, which was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  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; and

	c.  After a review of the applicant’s entire record of service, it is clear that his service during his last enlistment did not meet the criteria for a general discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge.

3.  With respect to the applicant's RE code:

	a.  The evidence of record confirms that the applicant’s RE code was assigned based on the fact that he was discharged as a result of a court-martial. The RE code of 4 is the appropriate codes for the applicant based on the guidance provided in applicable regulation for Soldiers being discharged under the provisions of chapter 3 of Army Regulation 635-200.  Furthermore, the RE code is consistent with the reason for his discharge.  Therefore, he received the appropriate RE code associated with his discharge; and

	b.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The RE 4 assigned to the applicant at the time of his discharge is correct.  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 has failed to submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

4.  With respect to the applicant's awards and decorations:

	a.  The evidence of record shows that the applicant was credited with completion of three overseas tours.  Therefore, he is entitled to award of the Overseas Service Ribbon with Numeral 3 and correction of his records to show the correct number of numerals associated with this award; and

	b.  The evidence of record shows that the applicant was issued a memorandum on 15 May 2002 that authorized him to accept and wear the Korean Parachutist Badge which is not shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show this award.

5.  With respect to the applicant's home of record, the evidence of record shows that when he initially enlisted in the Regular Army, the applicant listed his home of record as 3xx North 5th Street, Emmaus, PA 18049, which is incorrectly shown on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show the correct home of record address.

6.  With respect to the spelling of the city where his nearest relative lives, the evidence of record shows that the applicant's DD Form 214 incorrectly lists the city as "Emmas"; therefore, he is entitled to correction of his DD Form 214 to show the correct spelling of the city as "Emmaus." 

7.  With respect to the applicant's primary specialty:

	a.  The evidence of record shows that the applicant completed MOS training and was awarded primary MOS 31P on 1 June 1989.  He served in this MOS until 5 November 1999 when it was withdrawn as his primary MOS.  Therefore, he is entitled to correction of his DD Form 214 to show he served in MOS 31P for a period of 10 years and 5 months; 

	b.  The evidence of record shows that the applicant was awarded MOS 18E with the parachutist identifier on 5 November 1999.  He served in this MOS until 22 February 2005 when his court-martial sentence was adjudged.  Therefore, he is entitled to correction of his DD Form 214 to show he served in MOS 18E4P for a period of 5 years and 4 months; and

	c.  The total period of service he performed in both specialties is 15 years and 9 months; not 16 years, 5 months, and 9 days as he indicated.

8.  With respect to the applicant's training courses, the applicant's records show that he completed the Basic Training Course, the Special Forces Assessment and Selection Course, the Advanced International Morse Code Course, the Thailand Special Operations Forces Basic Military Language Course, the Antiterrorism Training Course, the Humanitarian Demining Course, and the Special Forces Advanced NCO Course, on various dates throughout his military service.  These courses are not listed on his DD Form 214; therefore, he is entitled to correction of his DD Form 214 to show these training courses.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  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:

	a.  deleting the entry "3xxx Pukalani Place, Emmas, PA" from Item 7b of his DD Form 214 and adding the entry "3xx North 5th Street, Emmaus, PA";

	b.  deleting the entry "18E4O SF COMMO Sergeant , 16 years 1 month" from Item 11 of his DD Form 214 and adding the following two entries:

		(1)  "31P4O, Satellite Communications Maintenance Team Chief, 10 years and 5 months"; and
		
(2)  "18E4P, SF Communications Sergeant, 5 years and 4 months." 

	c.  deleting the entry "Overseas Service Ribbon" from Item 13 of his DD Form 214 and adding the entries Overseas Service Ribbon (3rd Award) and the Korean Parachutist Badge; and

	d.  Adding the following entries to Item 14 of his DD Form 214: Communications Systems Circuit Controller Course, 24 weeks, 1989; Basic Combat Training Course, 9 weeks, 1988; Special Forces Assessment and Selection Course, 3 weeks, 1991; Advanced International Morse Code Course, 8 weeks, 1982; Thai (TH) SOF Basic Military Language Course, 27 weeks, 2000; Antiterrorism Training Course, 1 week, 2002; Humanitarian Demining Course, 2 weeks, 2002; and AN/PSC-5 Spitfire TTP/DAMA Course, 1 week, 2003. 

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 to an upgrade of his discharge and/or his RE code.


															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)                                         AR20080018000



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ABCMR Record of Proceedings (cont)                                         AR20080018000



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