IN THE CASE OF:	

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130005366 


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 the following corrections to his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 12 May 2012:

   a.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized):

* Joint Service Achievement Medal be replaced by the Joint Service Commendation Medal
* Meritorious Service Medal be changed to show 2nd Award
* 2 bronze service stars added to the Iraq Campaign Medal

   b.  Item 14 (Military Education), add the "Sustaining Base Leadership and Management Course";

	c.  Item 23 (Type of Separation) be changed from "Dismissal or Discharge as Appropriate" to "Retirement"; and

	d.  Item 24 (Character of Service) be changed from an under other than honorable conditions discharge to an honorable discharge.

2.  He also requests:

* removal of a reprimand 
* payment for 30 days of excessive confinement at Fort Leavenworth, KS
* issuance of orders for the movement of his household goods to his initial point of entry into active duty
* a personal appearance before the Army Board for Correction of Military Records (ABCMR)

3.  The applicant states, in effect:

* his record is unjust because he committed an act out of ignorance and bad judgment
* his mistake should not wipe away over 30 years of military service which will cause him and his wife to forego retirement benefits
* he should be granted clemency after 32 plus years of service instead of being dismissed
* he desires the Board to follow the intent of the statement made in ABCMR Docket Number AR20050015160 "...It is the pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service to be awarded…"
* while the military judge did order the issuance of a reprimand as part of his sentencing, the Army Court of Criminal Appeals did not approve that part of the sentence; only the confinement and dismissal was approved
* the preponderance of evidence suggests the reprimand should not be filed in his records and all traces should be removed from his records and destroyed
* he acknowledges his failure and accepts full responsibility for the acts he committed 
* he has been in law enforcement all his adult life and has believed in the judicial system and the wisdom of that system
* he seeks a more fair and equitable outcome to his 32 plus years of service and to change the severity of the sentence imposed
* he copied the multitude of documents out of a habit he engaged in whenever he changed assignments and he saw a need to be able to respond fully and completely should an inquiry of any type or magnitude arise
* he informed his superiors and replacements after each assignment that he had a complete copy of his work products and emails available to them should any issue or concern surface
* he used extremely poor judgment in duplicating and having the massive data in his possession 
* at no time did he have any intent to cause or allow any harm to his country's security or defense
* he will be punished for the rest of his life if clemency is not granted
* he was confined 26 days more than what was required
* he was authorized transportation of his household goods back to his point of entry upon his release from the Active Guard Reserve
* he questions how he can be denied retirement but yet be awarded the Bronze Star Medal and a "top block" officer effectiveness report
* he compares his situation to others similarly situated and the outcome they received
* a personal appearance before the Board would allow him to fill in any blanks and answer any questions

4.  The applicant provides self-authored statements and documents identified in a table of contents.

CONSIDERATION OF EVIDENCE:

1.  With regard to the portion of the applicant's request pertaining to the Joint Service Commendation Medal, Meritorious Service Medal (2nd Award), Iraq Campaign Medal with 2 bronze service stars, and Sustaining Base Leadership and Management Course, a DD Form 215 (Correction to DD Form 214) was issued on 22 March 2013 adding these items to his DD Form 214 for the period ending 12 May 2012.  Therefore, these items will not be further discussed in this Record of Proceedings.

2.  After having had prior enlisted service in the Regular Army and the Army National Guard of the United States (ARNGUS) as a military policeman, the applicant was appointed as a commissioned officer in the U.S. Army Reserve (USAR) in the rank of second lieutenant on 4 August 1983.  He entered active duty in an AGR status on 26 June 1994.

3.  On 21 September 2000, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This memorandum notified the applicant that he had completed the required years of service and he would be eligible for retired pay upon application at age 60.

4.  On 14 June 2002, the applicant was awarded the functional area designation Operations (OPS).

5.  On 26 January 2004, the applicant was promoted to lieutenant colonel (LTC).

6.  General Court-Martial Order Number 2, issued by Headquarters, Multi-National Corps – Iraq, Baghdad, Iraq, dated 12 February 2008, shows the applicant was found guilty of the following while deployed in Iraq:

* unauthorized possession of information relating to the national defense of the United States between on or about 31 October 2006 and 22 February 2007
* knowingly and wrongfully providing special privileges to and maintaining an inappropriate relationship with a Category I Interpreter on or between 1 January 2005 and 31 May 2006
* violating a lawful general regulation by wrongfully storing classified information in a living space between on or about 18 February 2007 and 21 February 2007
* violating a lawful general regulation by improperly marking classified information as unclassified between on or about 1 September 2006 and 21 February 2007
* violating a lawful general regulation by wrongfully and knowingly possessing about 49 pornographic video files between on or about 18 February 2007 and 21 February 2007

7.  His sentence was adjudged on 19 October 2007 and consisted of a reprimand, forfeiture of all pay and allowances, confinement for 2 years, and dismissal from the Army.

8.  General Court-Martial Order Number 2 also shows:

* the convening authority approved the sentence except for the part of the sentence extending to the dismissal from the service
* the applicant was credited with 254 days confinement credit against the sentence to confinement (228 days of pre-trial confinement credit and 26 days of judicial credit)
* the convening authority reprimanded the applicant for the offenses for which he was convicted

9.  A DA Form 4187 (Personnel Action), dated 2 October 2008, shows the applicant's status changed from confined by military authorities to present for duty on 26 September 2008, his minimum release date.  His maximum release date was 6 February 2009.

10.  On 30 April 2012, the Assistant Secretary of the Army (Manpower and Reserve Affairs) ordered the execution of the applicant's sentence as affirmed by the U.S. Army Court of Appeals for the total forfeiture of all pay and allowances, confinement for 23 months, and a dismissal.

11.  The Chief of Staff of the Army ordered the applicant dismissed from the USAR at midnight on 12 May 2012.

12.  Accordingly, on 12 May 2012, he was dismissed.  The DD Form 214 he was issued shows the following entries:

* Item 23 – Dismissal or Discharge as Appropriate
* Item 24 – Under Other Than Honorable Conditions
* Item 28 – Court-Martial
* Item 29 (Dates of Time Lost During this Period) – 5 March 2007 through 25 September 2008

13.  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.
Reserve Component officers may be released from active duty (REFRAD) pending completion of the appellate review, under paragraphs 2.33 and 2.34 or placed on excess leave in accordance with Army Regulation 600-8-10 in lieu of REFRAD.

14.  Paragraph 1-22 of Army Regulation 600-8-24 defines the types of an officer’s characterization of service:

     a.  Honorable characterization of service.  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, or the final revocation of a security clearance for reasons that do not involve acts of misconduct.

     b.  General 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 separation under honorable conditions 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; or is discharged for the final revocation of a security clearance.

     c.  Under Other Than Honorable Conditions characterization of service.  A discharge Under Other Than Honorable Conditions is an administrative separation from the service under conditions other than honorable.  A discharge certificate will not be issued.  An officer will normally receive an “Under Other Than Honorable Conditions” characterization of service when they resign for the good of the service; are dropped from the rolls of the Army; or are involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance.

     d.  Dishonorable characterization of service.  A court-martial may sentence a warrant officer who is not commissioned to a Dishonorable Discharge.  A discharge certificate will not be issued.

     e.  No formal discharge certificate.  No formal discharge certificate will be issued when the officer is:  dropped from the rolls of the Army; dismissed as a result of sentence of court-martial; removed under the criminal code of the United States; discharged Under Other Than Honorable Conditions; separated with a dishonorable discharge (applies only to a warrant officer who does not hold a commission).

15.  Paragraph 6-13 of the same regulation states the Secretary of the Army is the approval authority for retirements.  

16.  Army Regulation 600-8-10 prescribes the policies and mandated operating tasks for the leave and pass function of the Military Personnel System.  Paragraph 5-23 (Rules to request excess leave for Soldier awaiting administrative discharge) provides that Soldiers awaiting completion of administrative discharge proceedings may request an indefinite period of excess leave.  The General Court-Martial (GCM) authority, or his or her designee, is the approval authority.  The GCM authority approves when excess leave would be in the best interests of the unit to which the Soldier is attached and when leave will not interfere with timely processing or separation.  Soldiers granted excess leave while awaiting administrative discharge are charged ordinary leave until accrued leave is exhausted.

17.  Title 10, U.S. Code, Section 1161, (Commissioned officers: limitations on dismissal) states that no commissioned officer may be dismissed from any armed force except by sentence of a general court-martial; in commutation of a sentence of a general court-martial; or in time of war, by order of the President.  

18.  Title 10, U.S. Code, section 876a states that an accused who has been sentenced by a court-martial may be required to take leave pending completion of appellate action if the sentence includes an unsuspended dishonorable or bad conduct discharge.  

19.  Title 10, U.S. Code, section 706 states that a member who is required to take excess leave under section 876a of this title may not accrue leave or receive pay or allowances during that period of leave.

20.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  Paragraph 2-4 provides instructions for the completion of the following items on the DD Form 214.  

     a.  Item 23 – Enter as appropriate either:  release from active duty; discharge; retirement; release from active duty and order to active duty in another status; release from Active Duty for Training (ADT); release from custody and control of the Army; or release from ADT and discharge from the Reserve of the Army and return to the Army National Guard (ARNG); or dismissal.

     b.  Item 24 – The characterization or description of service is determined by directives authorizing separation.  The entry must be Honorable; Under Honorable Conditions; Under Other Than Honorable Conditions; Bad Conduct; Dishonorable; or Uncharacterized. 

21.  Manual for Courts-Martial, page II-129, section IV, states “only a general court-martial, upon conviction of any offense in violation of the code may sentence a commissioned or warrant officer or a cadet or midshipman to be separated from the service with a punitive separation.  In the case of commissioned officers, cadets, midshipman, and commissioned warrant officers, the separation shall be by dismissal.  In the case of all other warrant officers, the separation shall be by dishonorable discharge."

22.  Article 74 of the Uniform Code of Military Justice allows the Secretary and, when designated by him, any Under Secretary, Assistant Secretary, Judge Advocate General, or commanding officer to remit or suspend any part or amount of the unexecuted part of any sentence, including all uncollected forfeitures other than a sentence prescribed by the President.  It also allows the Secretary concerned to, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial.

23.  Army Regulation 600-37 (Unfavorable Information) applies to all officer and enlisted personnel in the Active Army, ARNG, and the USAR.  It sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  

24.  Army Regulation 27-10 (Military Justice), chapter 11, states an initial promulgating order is issued to promulgate the results of trial by a general court-martial or special court-martial and the initial action of the convening authority thereon.  Orders modifying the findings or all or any part of the sentence of a general court-martial, special court-martial, or summary court-martial issued subsequent to the order promulgating the result of a trial are published in appropriate supplementary court-martial orders.

25.  Army Regulation 190-47 (The Army Corrections System) covers policies governing the Army Corrections System and implements Department of Defense (DOD) Directive 1325.4, confinement of military prisoners and administration of military correctional programs and facilities.  It applies to the Active Army, USAR, and ARNG when in Title 10, U.S. Code status.

   a.  Paragraph 8-3d prohibits the return to military service of Reserve Component personnel called to active duty who later become prisoners or parolees.  Reserve Component personnel called to active duty who later become parolees are not eligible for return to military service.  Officer and warrant officer prisoners are not eligible for restoration in their former status.  

   b.  Paragraph 8-23 pertains to change in status.  It states that if the sentence to confinement of a parolee expires prior to completion of appellate review, the Commander, U.S. Disciplinary Barracks, will transfer the prisoner to an excess leave without pay status.  A DA Form 31 (Request and Authority for Leave) is required to grant excess leave.

   c.  Paragraph 10-19d states a prisoner who has completed a sentence to incarceration at the USDB and who has been adjudged a punitive discharge not yet ordered executed will be placed on excess leave and allowed to depart to their release address.  A prisoner who completes a sentence in a regional correctional facility will be sent to the personnel control facility of assignment.  

   d.  Paragraph 10-19e states that prior to transfer of any prisoner, the prisoner’s pay status will be reviewed and any payments due will be placed with the prisoner’s personal funds for transfer to the receiving facility.  The financial documents will be placed in a DA Form 2356 (Payroll Suspense Documents Envelope) and will accompany inmates to Army Corrections System facilities, unless the convening authority has approved total forfeiture, in which case the final pay voucher will be filed in the personal financial record and forwarded to Claims Division, Settlement Operations, Defense Finance and Accounting Service, Indianapolis, IN 46249.

26.  The Joint Federal Travel Regulation (JFTR) Volume1, chapter 7, paragraph U7506 (Convicted Personnel Awaiting Completion of Appellate Review) shows:

     a.  Involuntary Leave – a member, who is placed on leave involuntarily while awaiting completion of appellate review of the court-martial sentence to a punitive discharge or dismissal from the Service, may be provided transportation in-kind (but no per diem) to the home of record (HOR) or place entered active duty (PLEAD), as the member elects.  The least expensive transportation mode available must be provided or the member may be paid an amount not to exceed the Government's cost of that least expensive transportation.

     b.  Final Separation Travel - when the member travels at Government expense to the HOR or PLEAD, or to some other place on a "not to exceed" basis under paragraph U7506, this travel is the final separation travel unless the member is restored to duty.

27.  JFTR Volume 1, chapter 5, paragraph U5240-F (Dependent Travel and Transportation Incident to a Court-Martial Sentence/Administrative Discharge Under Other Than Honorable Conditions (for members stationed in the Continental United States (CONUS)) states a member with dependent(s) stationed in CONUS is authorized dependent permanent change of station travel and transportation allowances if the member is sentenced by court-martial to confinement for more than 30 days, receive a dishonorable/bad-conduct discharge or dismissal from the Uniformed Service, or receives an administrative discharge under other than honorable conditions.  Except when additional time is authorized/approved by the Secretarial process, dependent travel must start within 180 days from the date the court-martial is complete or of administrative discharge.

28.  JTFR Volume 1, chapter 5, paragraph U5370-H (Household Shipment Incident to a Court-Martial Sentence/Administrative Discharge Under Other Than Honorable Conditions (for member with dependent stationed in CONUS)), states a member (with dependent) in CONUS who is sentenced by a court-martial to confinement for a period of more than 30 days, receives dishonorable/bad conduct discharge, dismissal from a Uniformed Service, or receives an administrative discharge under other than honorable conditions is authorized household goods transportation directly related to dependent transportation under paragraph U5240-F. 

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 Army Board for Correction of Military Records 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 applicant’s overall service record, to include his combat tours, challenging assignments, awards, and decorations are noted.  However, none outweighs the offenses for which he was discharged.  The applicant’s obligation to uphold the standards of behavior and ethical conduct of the service, the Soldier’s Creed, and the officer corps was multiplied by his rank, experience, branch, and years of service.

2.  The applicant was convicted by a general court-martial of various offenses. He was sentenced to a forfeiture of all pay and allowances, confinement at hard labor for 2 years, a reprimand, and dismissal from the service.  The U.S. Army Court of Appeals affirmed the findings of guilty and a sentence of total forfeiture of all pay and allowances, confinement for 23 months, and a dismissal.

3.  Records show that at the time of his release from confinement he had served 24 months in confinement.  The Army Court of Criminal Appeals did not provide its ruling on the applicant's appeal until 3 February 2011 which was 2 years after his maximum release date.  Therefore, the reduction in his sentence could not have been anticipated.

4.  His trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction and dismissal were effected in accordance with applicable law and regulations and the dismissal appropriately characterized the misconduct for which he was convicted.

5.  The applicant’s sentence is not harsh.  His post-conviction difficulties are unfortunate, and his family suffers by sharing his circumstance; however, his situation, so far as it relates to the Army, is of his own making.  Despite the collateral consequences of his dismissal and the calls for clemency, given the applicant’s entire military record and the gravity of the offenses it is clear that his service did not meet the criteria for a general or an honorable discharge.

6.  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 or dismissal if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Absent any sufficiently mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

7.  With respect to his arguments:

     a.  removal of the reprimand – The applicant is correct in his contention the Court of Army Appeals did not affirm the reprimand.  However, the reprimand was a separate administrative action executed by the convening authority and required by regulation to be documented on general court-martial orders promulgating the results of a general court-martial.  Further, for historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, there is a reluctance to recommend that those records be changed.  There is not a sufficiently compelling reason for compromising the integrity of the Army’s records.  

     b.  compensation for excessive confinement – The applicant states an audit was conducted; however, he fails to provide a copy of the results.  There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the applicant produced any evidence, to support this contention and his statements alone do not overcome the government’s presumption of regularity.

     c.  issuance of appropriate orders with funding to transport household goods to his initial entry into his last period of active duty – the applicant is not entitled to this requested relief.  There is no evidence and he does not provide any showing a request was initiated or authorized prior to 180 days from his dismissal.

8.  The applicant’s request for a personal appearance hearing was also carefully considered; however, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

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)                                         AR20130005366



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ABCMR Record of Proceedings (cont)                                         AR20130005366



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