IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100016807 


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 all aspects of his appeal to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's dishonorable discharge be upgraded to honorable.

2.  Counsel states the applicant served successfully as an infantryman between 1987 and 2000 when he was appointed as a warrant officer.  He made several bad decisions in 1999 and 2000.  He was convicted by a general court-martial and now requests clemency based on:

* his record of service –

* he had over 16 years
* the misconduct was serious, but it does not reflect his entire career
* he had excellent job performance during the investigation and during and after the trial

* his post-trial service –

* he worked for 20 months
* after sentencing, a different unit requested that he be assigned to run their section
* after the trial he was offered a promotion, but it was held up by the convening authority

* illegal post-trial punishment –

* 20 months after his sentencing his unit in Germany transferred him to the Personnel Control Facility for the sole purpose of generating a "notification of excess leave"
* his old unit then placed him in a deserter status
* the applicant was stigmatized not only by a Federal conviction, but also by a deserter warrant

* after his discharge he went to work for the Department of Defense and is still serving his country
* he made extremely poor decisions, but he does not deserve to be "marked by this incident for the rest of his life…this one-time misconduct was something he has regretted every day since"

3.  Counsel provides copies of:

* 12 August 2002 orders issued by the 55th Personnel Services Battalion, Grossauheim Kaserne Germany, placing the applicant on excess leave effective 23 August 2002
* 6 December 2002 orders assigning the applicant to the Personnel Control Facility at Fort Knox, Kentucky, effective 28 August 2002
* request for voluntary excess leave effective 23 August 2002
* officer evaluation report for the period ending 15 May 2001
* Department of Defense National Security Personnel System (NSPS) Performance Appraisal of the applicant for the period October 2008 through September 2009

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 Army Board for Correction of Military Records (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 enlisted in Regular Army in November 1987.  He completed training as an equipment records and parts specialist and was stationed at Fort Hood, Texas, where he progressed normally.  The applicant was promoted to staff sergeant (E-6) in March 1992 and transferred to Europe in 1994.  In September 1997, he was assigned to the 1st Armored Division Support Command and promoted to sergeant first class (E-7) in March 1998.

3.  He was appointed as a warrant officer one in March 2000 and assigned for duty as a supply systems technician with Headquarters and Headquarters Company, 1st Armored Division Support Command, in May 2000.

4.  On 22 April 2002, a general court martial tried the applicant for:

	a.  conspiring with two staff sergeants and two specialists to file false travel claims – he was found guilty of conspiring with the two specialists and not guilty of conspiring with the two staff sergeants;

	b.  signing false official documents with two specifications in the form of false travel claims on 6 December 1999 for 17 days of travel and on 12 January 2000 for 12 days of travel and a third specification involving various documents between 23 July 1999 and 15 January 2000 – he was found guilty of only a part of the third specification;

	c.  frauds against the U.S. Government with 14 specifications – the applicant was found guilty of 7 specifications totaling about $12,000.00; and

	d.  actions prejudicial to good order and discipline by accepting payments from two subordinates – he was found guilty of two specifications with exceptions that limited the amounts to no more than $120.00 each.

5.  The adjudged sentence consisted of a reprimand, forfeiture of $1688.00 per month for 6 months, and a dishonorable discharge.

6.  The convening authority reduced the forfeiture period to 3 months, but otherwise approved the sentence.

7.  The U.S. Army Court of Criminal Appeals affirmed the findings and sentence and on 12 October 2005 the Court of Appeals for the Armed Forces denied the applicant's petition for review and affirmed the findings and sentence.

8.  On 24 February 2006, the applicant who had been on appellate leave was separated with a dishonorable discharge.  His 4 years, 3 months, and 2 days of creditable active duty during the period under review included 617 days of lost time and 1,282 days of excess leave.

9.  Army Regulation 600-8-24 (Officer Transfers and Discharges) states an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for an officer.  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.  

10.  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.

11.  The NSPS performance appraisal submitted by counsel in support of the applicant shows that from October 2008 through September 2009 the applicant was employed in a supervisory position by U.S. Army Europe [and apparently is still].

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his dishonorable discharge is too harsh, that his unit punished him even while he was on appellate leave, and that his overall record of service merits an honorable discharge.

2.  The applicant used his status and position to involve junior enlisted Soldiers and subordinates in repeated crimes involving the direct performance of his official duties.  In doing so he violated the special trust and confidence placed in him as an Army leader and brought discredit upon himself, the officer corps, and the U.S. Army.  His sentence does not appear too harsh for the crime he committed.

3.  His trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 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)                                         AR20100016807



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ABCMR Record of Proceedings (cont)                                         AR20100016807



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