IN THE CASE OF:	  

		BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120008035 


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 relief from punitive actions against him resulting from a general court-martial.

2.  He states a general court-martial in his case was unwarranted.  He was credited with over 17 years of active duty service.  He feels that with no prior offenses and an otherwise spotless record, he should be allowed to somehow complete 20 years of service and retire with the benefits and dignity he worked so hard to obtain.  He made a mistake, which he brought to the attention of his command.  For many years, he has "worked relentlessly to shine light on all areas of concern."  He has served his country honorably, and he feels it's time for closure.  

3.  He states he submits "evidence and information sensitive in nature" in support of his application; however, he has provided no documentary evidence.  

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 the Regular Army on 2 December 1980.  After completing initial entry training, he was awarded military occupational specialty 96B (Intelligence Analyst).  He achieved the rank/grade of staff sergeant/E-6 on 1 December 1990.  

3.  On 17 January 1995, the applicant's commander appointed an investigating officer under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) to conduct an informal investigation pertaining to the applicant's failure to pay just debts and the disappearance of papers from a file relating to him.

4.  On 3 February 1995, the investigating officer reported his findings and recommendations.  

	a.  The investigating officer concluded the applicant had demonstrated a lack of integrity in failing to take his legal obligations seriously by knowingly entering into several legal obligations and then dishonorably failing to pay his just debts.  He found the applicant had made payment on some obligations, but only in part and apparently under the pressure of the investigation.  He found the applicant was in violation of Article 134, Uniform Code of Military Justice (UCMJ), and listed his unmet obligations as follows:

* an apartment lease obligating him to pay a deposit and monthly rent
* an obligation to pay for public utility services provided to the apartment
* a bank loan obligating him to pay monthly payments
* a promissory note to repay the remaining balance on the defaulted bank loan above
* verbal promises to pay after failing to meet the terms of the promissory note above
* a contract for automobile insurance
* verbal promises to pay after failing to meet the terms of the insurance contract above
* an oral promise to repay a personal loan

	b.  The investigating officer concluded the applicant was in violation of Article 86, UCMJ, by demonstrating a lack of discipline and a clear disregard for the authority of his superiors in failing to report at a designated time and place.

	c.  The investigating officer further concluded there was insufficient evidence to prove beyond a reasonable doubt the applicant had removed documents from his information file maintained by his unit's Administration Section.

	d.  The investigating officer recommended considering several administrative actions to be taken against the applicant singly or in combination:

* counsel him pursuant to Army Regulation 600-15 (Indebtedness of Military Personnel)
* order him into the barracks to alleviate financial obligations
* permanently revoke his security clearance
* impose a bar to reenlistment on him
* process him for removal from the sergeant first class (SFC)/E-7 promotion list
* place a Letter of Reprimand in his permanent personnel file

	e.  The investigating officer also recommended considering nonjudicial punishment under the provisions of the UCMJ for:

* being absent without leave in violation of Article 86, UCMJ
* failure to pay just debts in violation of Article 134, UCMJ

5.  On 15 February 1995, a judge advocate verified the investigation complied with legal requirements, sufficient evidence supported the findings, and the recommendations were consistent with the findings.

6.  On 14 March 1995, the applicant was counseled by his commander for his demonstrated history of financial difficulties and his inability to overcome them.  His commander informed him he was initiating a bar to reenlistment against him and recommending his removal from the Department of the Army Centralized Promotion List to SFC.  

7.  A bar to reenlistment was approved on 24 March 1995.  He appealed, and his appeal was denied.  

8.  On 13 October 1995, his commander determined the bar to reenlistment would remain in place.  His commander stated the reasons for the decision as follows:

* he disenrolled himself from a financial management class, had not participated in the last 3 months, and his commander had to direct him to return to the program
* after review of the packet pertaining to his misconduct, there was reason to believe he had intentions to defraud the government

9.  His commander stated it was in the best interest of the U.S. Army not to remove the bar to reenlistment and to proceed with a court-martial.

10.  On 28 May 1996, Headquarters, 21st Theater Army Area Command, issued General Court-Martial Order Number 11.  The order shows the applicant was charged with one specification of violating Article 107, UCMJ (Charge I), and three specifications of violating Article 123a, UCMJ (Charge II).

	a.  He pleaded not guilty and was found not guilty of Charge I.

	b.  With regard to Charge II, he pleaded not guilty, but guilty in violation of Article 134, UCMJ, for each specification.  He was also found not guilty, but guilty in violation of Article 134, UCMJ, for each specification.  The specifications were entered as follows:

		(1)  Specification 1:  With intent to defraud, make and utter a worthless check, of a value of $430.00, on or about 28 December 1994.  

		(2)  Specification 2:  With intent to defraud, make and utter twenty worthless checks, of a total amount of $2,855.00, between 1 February 1995 and 27 February 1995.

		(3)  Specification 3:  With intent to defraud, make and utter eight worthless checks, of a total amount of $2,405.00, between approximately 1 March 1995 and 30 March 1995.  

	c.  He was sentenced to a bad conduct discharge (BCD), forfeiture of all pay and allowances, confinement for 45 days, and reduction to the grade of private/E-1.  The sentence was approved and, except for the BCD, ordered executed.  

11.  On 11 March 1998, the same headquarters issued General Court-Martial Order Number 3.  The order shows his sentence had been finally affirmed and the BCD was to be executed.

12.  On 12 June 1998, he was discharged in accordance with his sentence.  He was credited with 17 years and 5 months of net active service.

13.  The Manual for Courts-Martial in effect at the time stated the maximum punishment for dishonorably failing to maintain sufficient funds was a BCD, forfeiture of all pay and allowances, and confinement for 6 months.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable or BCD) pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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.

15.  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 evidence of record shows the applicant was convicted of three specifications of wrongfully and dishonorably failing to maintain sufficient funds (after disenrolling himself from financial management class).  His final conviction and sentence by general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

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.  Considering the applicant's grade, length of service, and the magnitude of his financial irresponsibility, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

3.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20120008035





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ABCMR Record of Proceedings (cont)                                         AR20120008035



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