BOARD DATE:	  9 September 2009

		DOCKET NUMBER:  AR20090003766 


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 provides additional documentary evidence through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be granted clemency in the form of an administrative discharge in lieu of the dishonorable discharge that he received so that he may be eligible to receive a portion of the retirement pay he earned.  Specifically, in the applicant’s case, there are three distinct forms of relief the Army Board for Correction of Military Records (ABCMR) may provide:  

	a.  suspend or remit any portion of the sentence;

	b.  remit the applicant's discharge by dating the remission any time prior to the Assistant's Secretary's execution of the dismissal; or

	c.  substitute an administrative form of discharge with a dismissal of the sentence of court-martial.



2.  Counsel states that the applicant served more than 20 years on active duty, sought out the most challenging assignments, and served in various roles.  He was divorced after 12 years of marriage and left his family behind after permanently changing stations and moving to Korea.  As a result of the divorce, he was in tremendous debt which resulted in him falsifying the location of his dependents by stating they were in Staten Island, New York.

3.  Counsel also states that:

	a.  the ABCMR has the broad authority to correct errors and injustices and significant leeway to grant clemency to recognize the applicant’s distinguished military service and correct an injustice. 

	b.  the applicant took full responsibility for his actions, experienced remorse and guilt, and he voluntarily, without any legal responsibility, made full restitution. Furthermore, there have been cases in the past where the ABCMR corrected records and granted clemency to deserving service members, particularly highly decorated veterans.

	c.  the applicant was not afforded a meaningful opportunity for clemency prior to the approval of the dismissal by the Assistant Secretary of the Army (ASA) Manpower and Reserve Affairs (M&RA).  

4.  Counsel provided nine copies of Officer Evaluation Reports (OERs), dated between 18 December 1997 and 19 December 2001; and 16 copies of certificates and recommendations for awards, dated between 31 October 1985 and 1 June 2000, in support of the applicant’s request:  

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.  The applicant’s record shows that he enlisted in the Regular Army (RA) on 
2 February 1985.  On 23 May 1997, he was appointed a warrant officer one.

3.  On 16 October 2002, the sentence was adjudged and the applicant was sentenced to confinement for a period of 6 months and to be dismissed from the service.  (No previous convictions considered).  He was convicted by a general court-martial of the following charges:

	a.  Charge I, Article 107 of the Uniform Code of Military Justice (UCMJ): two specifications of making false official statements:  
	
		(1)  Specification I:  On or about 18 July 2001, at Camp Humphreys, Republic of Korea, with the intent to deceive, the applicant signed two official records, a “DA Form 5960 and a DA Form 1561,” both records were false in that they variously listed the applicant's spouse and children as residing in Staten Island, New York:  The applicant entered a plea of guilty and was found guilty.  

		(2)  Specification II:  Indicated his marital status was "married" and "not divorced or legally separated from my spouse" and his primary dependents' status had not changed.  The applicant entered a plea of guilty and was found guilty.

	b.  Charge II, Article 121, of the UCMJ:  two specifications of larceny:  

		(1)  Specification I:  Between 18 July 2001 and 8 March 2002, at Camp Humphreys the applicant stole more than $13,000.00 in U.S. currency by receiving basic housing and family separation allowances to which he was neither eligible nor entitled.  The applicant entered a plea of guilty and was found guilty.

		(2)  Specification II:  Between 21 July and 1 September 2001, the applicant stole $3,217.00 in U.S. currency by receiving money for moving his "spouse" and children to New York when, in fact, he was divorced and the "[ex] spouse and children never left El Paso, Texas.  The applicant entered a plea of guilty and was found guilty.

	c.  Charge III, Article 134, of the UCMJ:  one specification of submitting a false claim.  On or about 18 July 2001, at Camp Humphreys the applicant prepared and presented for payment a fraudulent claim in the amount of
$3, 217.00 for travel, dislocation, and other allowances associated with his family's move to New York, when in fact, the applicant was not authorized to move his dependents to New York and he did not move his dependents to New York.  The applicant pled guilty and was found guilty.
4.  On 8 January 2003, the General Court Martial (GCM) convening authority ordered the sentence, except for that part of the sentence extending to a dismissal, to be executed.

5.  On 13 March 2003, the applicant was dismissed in accordance with paragraph 5-17, Army Regulation 600-8-24, as a result of court-martial.  His DD Form 214 shows he had completed 18 years, 1 month, and 10 days of creditable active military service and issued a dishonorable discharge.

6.  On 10 July 2003, the United States Army Court of Criminal Appeals (ACCA) affirmed the findings and the sentence in this case.  The conviction became final on 31 October 2003, when the U.S. Court of Appeals for the Armed Forces denied the applicant's petition for a grant of review.

7.  On 4 March 2004, the ASA (M&RA) approved the applicant’s sentence as affirmed by the ACCA.  The provisions of Article 71(c) having been complied with and the applicant having served that portion of the sentence pertaining to confinement, the dismissal was ordered duly executed.

8.  Headquarters, Department of the Army, Washington, DC, General Court-Martial Order Number 6, dated 29 March 2004, shows that the applicant was assigned to the Disciplinary Barracks, Fort Leavenworth, KS and that by the order of the Secretary of the Army, he was dismissed from confinement and ceased to be a member of the Army at midnight on 9 April 2004.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a GCM and he received a dismissal.  Trial by a GCM was warranted by the serious nature of the offenses for which the applicant was charged and convicted.  The sentence is commensurate with the misconduct for which he was convicted.  As a result, clemency is not warranted in this case.

2.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's record of service, the seriousness of the offenses for which he was convicted and which occurred over a period of time, and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  

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.



      ____________x____________
                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)                                         AR20090003766



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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