IN THE CASE OF:	  

		BOARD DATE:	      9 JULY 2009

		DOCKET NUMBER:  AR20090003511 


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 his discharge under other than honorable conditions be upgraded to a fully honorable discharge and that the Narrative Reason for Separation and Reentry (RE) Code be changed to a more favorable code.

2.  The applicant states, in effect, that he had no involvement in any regard to the alleged incidents which transpired prior to his decision to resign; however, he did not want to be responsible for destroying the careers and lives of those he had served with for years when he had little or no information regarding their circumstances.  He goes on to state that his company commander, executive officer and first sergeant served as witnesses to his character; however, the battalion commander was new to the unit and chose to involve him in the transpiring events.  He also states that he has not been involved in disciplinary actions either in civilian or government life and he desires to serve again in the military or as a police officer.    

3.  The applicant provides two letters of recommendation from two members of his former unit and a copy of his Good Conduct Medal orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 June 2003 for a period of 3 years under the Airborne Enlistment Option, for training as a unit supply specialist and assignment to Fort Bragg, North Carolina.

2.  He successfully completed his training and was assigned to an anti-armor airborne company at Fort Bragg as a supply sergeant.  He deployed to Iraq from 5 January 2004 to 16 April 2004 and from 1 September 2005 to 6 January 2006. He was advanced to the pay grade of E-5 on 1 October 2005 and he was awarded the Combat Action Badge.

3.  On 27 December 2005, he reenlisted for a period of 4 years and received a selective reenlistment bonus.

4.  On 3 October 2006, charges were preferred against the applicant for conspiring with two other Soldiers, hereafter referred to as Soldier #1 and Soldier #2, to commit larceny of government property of a value over $500.00 and stealing government funds of a value greater than $500.00.

5.  A review of the applicant's sworn statement that was taken during the course of an investigation conducted under the provisions of Army Regulation (AR) 15-6 indicates that the applicant was given a $1,000.00 "Best Buy" gift card by Soldier # 1 and was told that Soldier #2 had directed Soldier #1 to give him the card as payment towards a personal loan made by the applicant to Soldier #2.  The applicant indicated that he did not know where the gift card money had come from until he had already spent about $900.00 and had taken the merchandise home and Soldier #1 came by his house and told him that Soldier #2 had purchased merchandise with a government purchase card (GPC) and had returned the merchandise for a gift card rather than have it credited back to the GPC.  At that point the applicant called Soldier #2 and told him to come and get the merchandise and take it back because he did not want anything to do with it. Soldier #2 did not come and get the merchandise so he took it to his house and left it on the doorstep of Soldier #2's house.  The merchandise was returned to Best Buy the following day.

6.  On 28 November 2006, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  In his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf. 

7.  The applicant's chain of command recommended approval of the applicant's request and the brigade trial counsel indicated that the applicant was willing to testify against the two other Soldiers in exchange for approval of his Chapter 10 request.  The trial counsel further indicated that the applicant's role in the misuse of the GPC was minimal, that he was never issued a GPC nor did he participate in the initial purchases.  He only received store credit derived from a GPC transaction as payment for a debt owed by one of the other Soldiers and all of the merchandise was returned to the store and there was no financial loss to the government.  He recommended that the applicant be discharged under other than honorable conditions.

8.  The command Staff Judge Advocate (SJA) indicated that the applicant was a pertinent witness in the pending courts-martial of the other two Soldiers and recommended to the convening authority that the applicant's separation be executed at the conclusion of the court-martial proceedings of the two cases.

9.  On 30 November 2006, the appropriate authority (a major general) approved the applicant's request for discharge and directed that it be executed at the conclusion of the court-martial proceedings of the other two Soldiers.  He also directed that the applicant be discharged under other than honorable conditions.

10.  However, for reasons not explained in the available records, the applicant was discharged on 21 December 2006, under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 3 years, 6 months and 9 days of total active service.

11.  A review of the official records of Soldier #1 shows that while pending trial by a general court-martial, he submitted a request for discharge in lieu of trial by court-martial on 4 January 2007.  The appropriate authority approved his request on 18 January 2007.  A review of the sworn statement and Summary of Questioning made by Soldier #1 during the AR15-6 investigation reveals that only Soldier #1 and Soldier #2 knew of the refund for store credit and that he had given the applicant the gift card because Soldier #2 told him to because he owed the applicant money.

12.  A review of the official records of Soldier #2 shows that while pending trial by a general court-martial, he submitted a request for discharge in lieu of trial by court-martial on 4 January 2007.  The appropriate authority approved his request on 18 January 2007.  A review of the Summary of Questioning made by Soldier #2 during the AR 15-6 investigation reveals that only Soldier #1 and Soldier #2 knew of the refund for store credit and that he had told Soldier #1 to give the applicant the gift card because he owed the applicant money and was receiving pressure from his leaders to pay the applicant back.  He also stated that the applicant told him to come and get the stuff when he found out that the funds used came from returned goods bought with a government credit card.

13.  Both Soldier #1 and #2 were discharged under other than honorable conditions on 5 February 2007, under the provisions of Army Regulation         635-200, chapter 10, in lieu of trial by court-martial.

14.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 11 July 2007 and contended at that time that he had been a stellar Soldier and that his counsel was quite confident in his case and actually was not even sure as to why he was before him because of the very limited evidence the prosecution had and the fact that the other two Soldiers had admitted that they had done wrong and that he (the applicant) had no involvement in such activity.  He went on to state that his company commander refused to prefer charges against him; however, the new battalion commander, being a former morals and ethics instructor who was unfamiliar with the applicant's previous actions and performance, elected to prefer charges.

15.  On 11 July 2008, the ADRB , in a three to two vote, determined that the applicant's discharge was both proper and equitable and denied his request for an upgrade of his discharge.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.   

17.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was unjustly accused and discharged for the activities of two other Soldiers has been noted and appears to have some merit.

2.  The evidence obtained from the records of the two other Soldiers who were accused of purchasing merchandise on a GPC and returning it for credit on gift cards shows that both of the other Soldiers separately admitted guilt to the offenses and further admitted that the applicant was not involved in their activities. 

3.  Furthermore, both Soldiers admitted separately that the applicant immediately contacted Soldier #2 to come and get the merchandise and return it when he was informed by Soldier #1 of where the funds had come from to get the gift card.

4.  Although there is no evidence to show that the applicant, who was a junior noncommissioned officer at the time, attempted to contact the appropriate officials when he discovered the illicit activities being conducted by the two Soldiers, that in itself is not a crime; it was only an ethical shortcoming on his part.

5.  In any event, when all of the evidence from all parties is collected and reviewed, it is apparent that the applicant was not knowingly a part of the conspiracy and was an unwilling and unknowing part of the larceny that occurred.

6.  Therefore, based on his exemplary record of service and the available evidence, it would be in the interest of justice at this time to upgrade his discharge to a fully honorable discharge based on Secretarial Authority              (AR 635-200, paragraph 5-3, separation program designator code KFF), to restore his rank to the pay grade of E-5, and to issue him a RE Code of "1."


BOARD VOTE:

___X_____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding his 21 December 2006 discharge under other than honorable conditions and issuing him an Honorable Discharge Certificate on the same date, under the provisions of AR 635-200, paragraph 5-3, under Secretarial Authority (separation program designator code KFF), with a RE Code of "1" and by restoring him to the pay grade of E-5. 




      _______ _   __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)                                         AR20090003511





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ABCMR Record of Proceedings (cont)                                         AR20090003511



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