IN THE CASE OF:	

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090012559 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of an earlier request to correct the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the Military Outstanding Volunteer Medal, the Master Parachutist Badge with Combat Star (correctly known as the bronze service star), the Special Forces Tab, and the Greek Airborne Badge; and that items 12e (Total Prior Inactive Service), item 19a (Mailing Address After Separation), and 19b (Nearest Relative) be corrected.  

2.  Counsel also requests reconsideration of an earlier request to remit the applicant's dismissal and substitute a general discharge for the executed dismissal.  

3.  Counsel states, in effect, that the original Board reviewed inaccurate records of the applicant's military service and did not apply any of the Army's recognized clemency criteria in evaluating the applicant's request to remit his dismissal.  He points out that the DD Form 214 considered by the Board did not accurately portray the true nature of the applicant's distinguished military service, that the DD Form 214 reflected that the applicant's only awards were the National Defense Service Medal and the Army Service Ribbon, and that it omitted his awards for valor, for assault landings, and his Ranger Tab, among many others.  He indicates that the DD Form 214 was incorrect because it did not reflect the applicant's true length of active service or his prior Reserve service.  Counsel states that because the original decision was founded on inaccurate records of the applicant's service, the applicant promptly sought and gained partial correction of his military records, particularly his DD Form 214.  He contends that since the original decision was founded on incorrect records, the DD Form 215 (Correction to DD Form 214) constitutes new evidence that was not in the record at the time of the prior consideration.  He also includes with this request for reconsideration a letter recommending clemency from Chaplain (Major General) G__, the former Chief of Chaplains.  

4.  Counsel states that Army Regulation 15-130 (Army Clemency and Parole Board) specifically delineates the Department of the Army clemency criteria and that the Board has considered these or similar factors in other cases where a petitioner has sought clemency.  Counsel contends that the applicant offers evidence that he satisfies the Army clemency criteria, including evidence of his exceptional military service, combat service, personal characteristics, psychological profile and his need for specialized treatment (psychiatric care for Post Traumatic Stress Disorder) and related mental health illnesses offered by the Department of Veterans Affairs (DVA).  
     
5.  Counsel also states that the applicant satisfies the Army clemency criteria, that granting clemency would not depreciate the seriousness of the applicant's offense nor promote disrespect for the law, that the applicant's civilian history and exemplary military service warrant clemency, that numerous senior Army leaders recommended clemency based on the applicant's exemplary military service, that the applicant was a model prisoner, that his personal characteristics weigh strongly in favor or clemency, that the victims of the applicant's offenses recommended clemency, and that prior correction board precedent provides further support for the applicant's request. 

6.  Counsel states that the applicant was awarded the Military Outstanding Volunteer Medal in June 1997 as evidenced by the DA Form 638 (Recommendation for Award), dated 3 June 1997.  He contends the applicant participated in the 2nd Ranger Battalion's combat jump in Grenada on 
25 October 1983 and his records should be corrected to show the Master Parachutist Badge with bronze service star.  Counsel goes on to state that the applicant meets the criteria for wear of the Special Forces Tab and that although he does not have orders authorizing the wear of the Special Forces Tab, he completed the Special Forces Officer Course on 1 August 1978 before the Special Forces Tab was authorized on 17 June 1983.  He claims that the applicant also earned the Greek Airborne Badge when he was assigned to the 5th Special Forces Group (Airborne) through his participation in joint training with the Greek Special Forces in Zeus 78.       
7.  Counsel further states that prior to the applicant's court-martial he had a spotless and outstanding military career, that he served in the Army for more than 23 years all of them as a chaplain, that he is a highly decorated Soldier who served in combat in Grenada, Panama, and the Gulf War, and that his many awards including for combat heroism reflect his committed and selfless service to the military.  He indicates that the applicant takes full responsibility for his offenses, that he acknowledged and accepted responsibility for his actions by pleading guilty, that while his offense was serious he did not commit a crime of violence, and that he served a significant sentence of confinement and voluntarily made full restitution.  He contends that the record clearly establishes that his misdeeds were precipitated by mental illness stemming directly from his combat duties.   

8.  The applicant submitted a letter, dated 29 August 2009, wherein he requested that items 12, 19a, and 19b on his DD Form 214 be corrected.  He indicates that item 12e on his DD Form 214 needs to be corrected to show 2 years, 10 months, and 22 days.  He points out that the Board missed 9 days of his inactive service in the U.S. Army Reserve.  He also states that he never provided the Chester, Pennsylvania address as reflected in items 19a and 19b on his DD Form 214.     

9.  Counsel provides a 23-page brief, dated 15 July 2009, with enclosures outlined in the Table of Contents in support of the applicant's request for reconsideration.   The applicant provided a DA Form 1506 (Statement of Service for Computation of Length of Service for Pay Purposes), dated 13 June 1996; and a letter, dated 15 October 2004, from the Office of The Judge Advocate General in support of his request for reconsideration.     

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080002171, on 17 July 2008 and Docket Number AR20090000973, on 28 April 2009.

2.  In support of his claim to amend item 12e on his DD Form 214, the applicant provided a DA Form 1506, dated 13 June 1996, which shows he served in the USAR from 27 June 1976 to 5 July 1976, a total of 9 days.

3.  In support of his claim to amend items 19a and 19b on his DD Form 214, the applicant provided a letter, dated 15 October 2004, from the Chief, Criminal Law Office of The Judge Advocate General which shows an address in Pennsburg, Pennsylvania.  

4.  In support of his request for the Military Outstanding Volunteer Medal, he provided a DA Form 638, dated 3 June 1997, which shows this medal was approved.   

5.  In support of his request for the Master Parachutist Badge with bronze service star, he provided a DA Form 67-8 (Officer Evaluation Report) covering the period 
7 June 1983 to 6 May 1984, which shows his assignment to the 2nd Ranger Battalion at the time it made its combat jump into Grenada.  He also provided a newspaper article mentioning the applicant's combat jump into Grenada.

6.  In support of his request for the Special Forces Tab, he provided a DA Form 1059 (Service School Academic Evaluation Report), dated 18 September 1978, which shows he completed the Special Forces Officer Course.   He also provided a diploma from the Special Forces Officer Course. 

7.  In support of his request for the Greek Airborne Badge, he provided a diploma, dated 18 September 1978, awarding him the Greek Airborne Badge.

8.  In support of his request to remit his dismissal, a DD Form 215, dated 
20 August 2009, was provided which amended numerous items on the applicant's DD Form 214.  Among the amended items, item 12c (Net Active Service This Period) was corrected to show he completed 27 years, 11 months, and 21 day; item 12e was corrected to show he completed 2 years, 10 months, and 13 days of prior inactive service; and item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) was corrected by adding the Bronze Star Medal with "V" Device with Second Oak Leaf Cluster, 
9 awards of the Meritorious Service Medal, the Air Medal, the Joint Service Commendation Medal, two awards of the Army Commendation Medal, the Joint Service Achievement Medal, two awards of the Army Achievement Medal, the Joint Meritorious Unit Award, the Valorous Unit Award, the Armed Forces Expeditionary Medal with two bronze service stars and bronze arrowhead, the Southwest Asia Service medal with two bronze service stars, the Armed Forces Service Medal, the Humanitarian Service Medal, the Armed Forces Reserve Service Medal, the Kuwait Liberation Medal (KLK) – Saudi Arabia, the KLK-Kuwait, the Senior Parachutist Badge, the Master Parachutist Badge, and the Ranger Tab. 

9.  In support of his request to remit his dismissal, a memorandum, dated 
3 February 2003, from Chaplain (Major General) G__, Chief of Chaplains was provided.  In summary, he stated that he supported the applicant's petition for clemency and that given the facts of the case and recommendations of the court martial convening authority, he believes the applicant has been sufficiently punished for his crime.  He indicated that it seemed equitable to restore the applicant's entitlement to treatment by the DVA given that he suffered from a treatable malady apparently incurred while he was on active duty and the malady seemed to have contributed to his unfortunate condition and his wrong decisions.  He acknowledged that he understood that under proper care the effects of the alleged PTSD could be substantially ameliorated.  He stated that he had known the applicant for many years and that until the occurrences which led to his court-martial, conviction, and dismissal from service he had identified him as one of the Chaplaincy's potentially most senior leaders.  He recommended that the applicant be granted clemency and that his entitlements be restored given his contrition, his attempts at rehabilitation, his "paying his dues" in prison, and his potential for a future good life in the civilian community.    

10.  The applicant's submissions are new evidence which will be considered by the Board.

11.  The applicant 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.  

12.  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, and the 82d Airborne, Fort Bragg.  Furthermore, the applicant served in three combat tours:  Grenada, Panama, and Southwest Asia (Gulf War).

13.  The applicant’s major awards and decorations include three awards of the Bronze Star Medal, one with “V” Device, nine awards of the Meritorious Service Medal, the Air Medal, five awards of the Army Commendation Medal, the Ranger and Special Forces Tabs, and several joint awards.  

14.   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 Consolidated Chaplain's Funds (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.

15.  The Court found the applicant guilty of all charges and specifications and sentenced him to a 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.

16.  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 6 months, beginning on 5 October 1999.

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

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

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

20.  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.

21.  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 being in confinement. 

22.  Army Regulation 600-8-22 (Military Awards) states the Military Outstanding Volunteer Service Medal may be awarded to members of the Armed Forces of the United States and their Reserve Components who, subsequent to               31 December 1992, perform outstanding volunteer community service of a sustained, direct, and consequential nature.  To qualify for award of the Military Outstanding Volunteer Service Medal a service member's volunteer service must meet the following requirements:  (1) be to the civilian community, to include the military family community; (2) be significant in nature and produce tangible results; (3) reflect favorably on the Military Service and the Department of Defense; and (4) be of a sustained and direct nature. 

23.  Army Regulation 600-8-22 states that a bronze service star is authorized to be worn on the Parachutist Badge to denote a Soldier's participation in a combat parachute jump and that orders are required to confirm award of these badges.  The regulation also states that credit for a combat parachute jump is related directly to credit for a combat assault landing for the unit to which the Soldier is assigned at the time of the assault.  The regulation specifically requires that the unit must be credited with a combat assault in order for the Soldier to receive the Parachutist Badge with the bronze service star affixed and that each Soldier must physically exit the aircraft to receive combat assault credit and the Parachutist Badge with bronze service star.

24.  Army Regulation 600-8-22 states the Special Forces Tab may be awarded to any person meeting one of the following criteria:  (1) successful completion of U.S. Army John F. Kennedy Special Warfare Center (USAJFKSWCS)-approved Active Army (AA) institutional training leading to SF qualification; (2) successful completion of a USAJFKSWCS-approved Reserve Component (RC) Special Forces qualification program; or (3) successful completion of an authorized unit-administered SF qualification program.

25.  Army Regulation 600-8-22 states that, for active component institutional training, the Special Forces Tab may be awarded to all personnel who meet the following:  (1) for successful completion of the Special Forces Qualification Course or Special Forces Detachment Officer Qualification Course (previously known as the Special Forces Officer Course).  These courses are/were conducted by the USAJFKSWC (previously known as the U.S. Army Institute for Military Assistance); (2) prior to 1 January 1988 for successful completion of the then-approved program of instruction for Special Forces qualification in an Special Forces Group, who were subsequently awarded, by competent authority, skill qualification identifier (SQI) “S” in Career Management Field 18 (enlisted) or SQI “3” in Functional Area 18 (officer).

26.  Army Regulation 635-5 (Separation Documents) provides that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Completion of the DD Form 214 is accomplished after consulting source documents.  For [former] officer personnel, the following source documentation is consulted in preparing a DD Form 214:  the computer-generated Officer Record Brief (ORB); separation approval authority documentation, if applicable; separation orders; and any other document authorized for filing in the official military personnel file.  The regulation provides the following information which is specific to the applicant’s request:

	a.  Items 12e – Use extreme care in completing this block since post-service benefits, final pay, retirement credit, and so forth are based on this information.  "Total Prior Inactive Service" is derived from previously issued DD Forms 214 and/or the ORB – enter the total amount of prior inactive service, less lost time, if any.

	b.  Items 19a and 19b – These addresses will be provided by the Soldier.  The address in 19a must be a permanent address.  Civilian penal institutions will not be accepted.  For 19b, the Soldier will be advised the name and address of a relative should be someone who will know his or her location and address at all times.  When a relative is not available, use a close friend.  When the person is at the same address as 19a, enter "(NAME) AND ADDRESS SAME AS BLOCK 19A."

27.  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 the regulation.

28.  Paragraph 1-22 of Army Regulation 600-8-24 defines the types of an officer’s characterization of service:  A General Discharge Under Honorable Conditions characterization of service.  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 General Discharge 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.

29.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The DA Form 638, dated 3 June 1997, provided by the applicant which shows the recommendation for award of the Military Outstanding Volunteer Medal was approved is accepted as sufficient evidence on which to amend his DD Form 214 to show this medal.

2.  Based on the applicant's award of the Armed Forces Expeditionary Medal with two bronze service stars and bronze arrowhead (i.e., which denotes participation in a combat parachute jump, helicopter assault landing, combat glider landing, or amphibious assault landing), he is eligible for award of the Master Parachutist Badge with one bronze service star.  Therefore, his DD Form 214 should be corrected to show this badge.  

3.  The DA Form 1059, dated 18 September 1978, provided by the applicant which shows he completed the Special Forces Officers Course on 1 August 1978 is accepted as sufficient evidence on which to amend his DD Form 214 to show the Special Forces Tab.  

4.  The diploma, dated 18 September 1978, provided by the applicant which shows he was awarded the Greek Airborne Badge is accepted as sufficient evidence on which to amend his DD Form 214 to show this badge.

5.  The entry on the DA Form 1506, dated 13 June 1996, which shows the applicant served in the USAR from 27 June 1976 to 5 July 1976 (a total of 
9 days) is accepted as sufficient evidence on which to amend item 12e on his 
DD Form 214.  Therefore, item 12e on his DD Form 214 should be corrected to show he had 2 years, 10 months, and 22 days of prior inactive service. 

6.  The applicant requests that items 19a and 19b on his DD Form 214 be corrected to show an address of Pennsburg, Pennsylvania.  His letter, dated 
15 October 2004 which shows an address of Pennsburg, Pennsylvania was considered.  However, since the governing regulation states that this information will be provided by the separating Soldier, there is no basis for granting the applicant's request to amend these items on his DD Form 214 so many years after his separation. 

7.  Counsel's contentions, the DD Form 215, and the letter from Chaplain (Major General) G__ recommending clemency were carefully considered.  
 
8.  Contrary to counsel's contention that the original Board reviewed inaccurate records of the applicant's military service, the applicant's overall service record, to include his combat tours, challenging assignments, awards, and decorations were considered.  

9.  It is acknowledged that the applicant's length of service was subsequently amended by the DD Form 215 to show he completed 27 years, 11 months, and 21 days instead of 27 years, 10 months, and 11 days of active service and his prior inactive service was amended.      

10.  Counsel's contention that prior Army and Air Force correction board cases provide further support for the applicant's request for a general discharge was considered.  However, each case is reviewed individually and the evidence presented before the Board is based on its own merit.  There are no cases that set the standards on how the Board should vote.  

11.  Trial by court-martial was warranted by the gravity of the offenses charged.  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.

12.  Evidence of record shows the applicant, a chaplain in the rank of colonel who is expected to act with the highest integrity at all times, was dismissed from the service for making three false official statements with intent to deceive and for fourteen specifications of larceny totaling $73,557.75.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.


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 partial relief and amendment of the ABCMR’s decision in Docket Number AR20090000973, dated 28 April 2009.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entry in item 12e on his DD Form 214;

	b.  adding the entry "0002 10 22" in item 12e; and 

	c.  adding the Military Outstanding Volunteer Medal, the Master Parachutist Badge with one bronze service star, the Special Forces Tab, and the Greek Airborne Badge in item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) on his DD Form 214.

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 amending items 19a and 19b on his DD Form 214.

3.  With regard to the decision of the ABCMR set forth in Docket Number AR20080002172, dated 17 July 2008, 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 to amend this decision.


      _______ _   _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)                                         AR20090012559



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ABCMR Record of Proceedings (cont)                                         AR20090012559



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