IN THE CASE OF:	  

		BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130007508 


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 an upgrade of his discharge to honorable and restoration of his rank to master sergeant so his retirement pay grade can be restored to E-8.

2.  The applicant states he served in the Regular Army from 18 March 1968 to 17 March 1971 and he received an honorable discharge in 1975.  During his entire military career he only received one negative evaluation.  He had no record of indiscipline.  He stated he was in this position because the Defense Finance and Accounting Service (DFAS) continued to make deposits into his account at the end of an active duty tour.  Upon being contacted by Staff Sergeant (SSG) E____ of the 108th Training Command (Initial Entry Training) that he was receiving active duty pay, he acknowledged to her that he was aware of it.  He told her not to communicate this with his employer; however, she called them and stated, "he said not to tell you about this."  He lost his job as a Reserve Officers' Training Corps instructor because of her violation of the Privacy Act when she was not authorized to disclose this information.

3.  He states it had been a practice for DFAS to make overpayments and send a pay request out.  He responded to DFAS's repay request and their response was a thank you; his account was now paid in full for both active duty and Reserve.

4.  He served in a U.S. Army Reserve (USAR) division "where corruption, racism, irrational, maleficence [malfeasance], ethnocentric practices are okay."  He stated that "Nazism and anti-American[ism] was the norm for the then Commander, Major General (MG) M____.  MG M____ initiated and gave an administrative board a mandate and a directive to discharge him.  The administrative board stated he had committed larceny.  The facts were before them, and an overpayment is not a larceny.

5.  The applicant provides an affidavit from the military attorney who represented him at his administrative separation board.

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.  He previously enlisted in the Regular Army on 18 March 1968.  He was released from active duty on 17 March 1971 and transferred to the USAR after completing 3 years of active duty service that was characterized as honorable.

3.  Following a break in service, he enlisted in the USAR on 7 April 1982.  He served continuously until his discharge on 28 September 2009.

4.  On 10 May 2000, he was notified that he completed the required years of qualifying Reserve service and was eligible for retired pay upon application at age 60 (20-year letter).

5.  On 22 December 2003, he was ordered to extended active duty for 2 years.  On 8 November 2004, he was promoted to master sergeant/pay grade E-8 in military occupational specialty (MOS) 42L (Administrative Specialist).  His orders to active duty were amended and reissued to continue his active duty service to 25 June 2005.

6.  Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, SC, Orders 132-170, dated 12 May 2005, released him from active duty effective 25 June 2005.  He completed 1 year, 6 months, and 4 days of active service that was characterized as honorable.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served 6 years and 4 months in MOS 42L and 30 years and 11 months in MOS 11B (Infantryman).

7.  A memorandum from MG M____, Commander, Headquarters, 108th Training Command (Initial Entry Training), Charlotte, NC, undated, subject:  Notification of Separation Proceedings under Army Regulation 135-178 (Army National Guard and Army Reserve – Enlisted Administrative Separations), Chapter 12, with a suspense date of 23 September 2008, notified the applicant that he was initiating action to separate him from the USAR for misconduct for commission of a serious offense under the provisions of Army Regulation 135-178, 
paragraph 12-1c.  The reason for the proposed action was the larceny of government funds in violation of Article 121, Uniform Code of Military Justice, by receipt of active duty pay from 26 June 2005 through 31 December 2006 in an amount exceeding $117,000.00 after his release from active duty date of 25 June 2005.  The commanding general further advised the applicant that he was recommending characterization of the applicant's service as under other than honorable conditions.

8.  The commanding general advised the applicant of his right to:

* have his case considered by a board officers
* appear in person before a board officers
* submit statements in his own behalf
* be represented by counsel
* waive any of these rights
* withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge and request presentation of his case before a board of officers

9.  The commanding general advised him that action was suspended for 45 days to allow for the applicant to exercise his rights set forth in the letter.  The commanding general further advised the applicant that failure to reply within 30 days of the receipt of the notification would constitute a waiver of all his rights.

10.  The applicant failed to submit an election of rights within 30 calendar days of being notified of the separation action.  This constituted a waiver of his rights.

11.  On 18 September 2008, the applicant requested a personal meeting with MG M____ in response to the notification of separation proceedings under Army Regulation 135-178.  He stated there was no act of larceny of government funds of the stated amount exceeding $117, 000.00 as indicated in the notification memorandum.

12.  In a memorandum from MG M____ to the applicant, dated 13 July 2009, subject:  Involuntary Separation under Army Regulation 135-178, Chapter 12, Paragraph 12-1c, the commanding general indicated he had thoroughly considered the separation packet concerning the applicant, including his request for a meeting with him to discuss the pending separation action.

	a.  The applicant technically had waived his right to a hearing before an administrative separation board by failing to timely submit an election of rights requesting a hearing before an administrative separation board.

	b.  He referred the matter to a board of officers to determine whether the applicant should be retained or involuntarily separated and, if involuntarily separated, to recommend the type of discharge certificate or type of discharge.

	c.  It would be inappropriate to discuss the pending separation action with the applicant.

13.  A letter from DFAS, Indianapolis, IN, dated 12 August 2009, states the applicant's debt of $113,301.61 had not been paid and no payments had been received.

	a.  A previous USAR debt of $5,334.58 was paid in full on 18 April 2007.

	b.  The Army debt of $113,301.61 was interfaced to their system on 5 February 2008.  The problem they had was that the initial notification letter for the $113,301.61 debt had a "paid-in-full" comment in the debt reason section because of the previously-paid debt.  However, the $113,301.61 debt was still due.

14.  On 15 August 2009, the applicant appeared before an administrative separation board with counsel.

	a.  The administrative separation board found he committed the serious offense of larceny of government funds.

	b.  The administrative separation board unanimously recommended his separation from the USAR and characterization of his service as under other than honorable conditions.

15.  On 20 August 2009, the Chief of Military Justice, Headquarters, 108th Training Command (Initial Entry Training), provided a legal review of the separation action concerning the applicant.  The Chief of Military Justice determined:
* 
there were no errors made during the proceedings
* sufficient evidence supported the findings of the administrative separation board
* the administrative separation board's recommendations were consistent with its findings
* the separation action was legally sufficient and complied with all applicable statutes, regulations, and policies

16.  On 22 August 2009, the applicant submitted a statement to MG M____.  He indicated that DFAS admitted to their error and there was no willful intent on his part to use the funds.  He held onto the funds awaiting to hear from DFAS and they were not used until after DFAS sent him the statement of the amount they were seeking.  He stated there were numerous attempts made on his part to correct the DFAS oversight.  The applicant pointed out his accomplishments, both as a Soldier and a civilian.  He also provided a military biographical summary and his civilian résumé.

17.  On 18 September 2009, MG M____ approved the findings and recommendations of the administrative separation board.  He had thoroughly considered the separation action pertaining to the applicant, the administrative separation board's findings and recommendations, and the legal review.  He directed:

* the applicant's reduction to the rank of private/pay grade E-1
* the applicant's discharge under the provisions of Army Regulation 
135-178, chapter 12, for misconduct for commission of the serious offense of larceny of government funds
* the issuance of an under other than honorable conditions discharge 

18.  On 21 September 2009, he was reduced to the rank of private/pay grade 
E-1.  On 28 September 2009, he was discharged from the USAR under other than honorable conditions.

19.  On 1 October 2009, he was placed on the Retired List in the rank of private/pay grade E-1.

20.  On 7 March 2011, the applicant was present for an Army Discharge Review Board (ADRB) personal appearance hearing to upgrade his discharge.  The ADRB voted by majority to change the character of his discharge from under other than honorable conditions to general.  The decision was based on a matter of equity, given the applicant's 27 years of service, the quality of his service, no record of any other misconduct, and his post-service accomplishments (volunteer work with various community organizations for veterans).  This decision would have restored his retirement grade to E-8 and allowed him to draw retirement pay as an E-8.  The ADRB determined his reason for discharge was equitable.

21.  On 6 May 2011, the President of the ADRB dissented from the majority vote to grant relief and referred the case to the Deputy Assistant Secretary of the Army (Review Boards) (DASA(RB)) for a final decision.

	a.  The ADRB President stated the applicant's contention that his command was arbitrary and capricious and overly harsh in its decision to discharge him was not supported by his records and the applicant provided no evidence to support his contention.

	b.  After the 7 March 2011 hearing, the ADRB became aware of documents available on the Internet indicating the applicant was convicted by a jury in U.S. District Court on 23 February 2010 of converting public funds and making false statements to the Federal Bureau of Investigation (FBI), the Board of the U.S. Army conducting his separation hearing, and to a major general of the U.S. Army.  Trial testimony and evidence showed he was overpaid from June 2005 through December 2006, receiving approximately $100,000.00 in active duty pay after he separated from active duty and, further, that he neither returned nor saved the money but rather that he spent it.

	c.  The ADRB's decision was not supportable given the applicant's pay grade (E-8), experience (MOS 42A), and duration and magnitude of the unearned payment (1 1/2 years, more than $113,000.00).

	d.  The President of the ADRB recommended overruling the ADRB's vote in the applicant's case and leaving both his character and reason for discharge unchanged.

22.  On 9 May 2011, the DASA(RB) concurred with the ADRB President's recommendation.

23.  Army Regulation 135-178 sets forth the basic authority for the separation of Army National Guard and USAR enlisted personnel.

	a.  No Soldier will be discharged in accordance with this regulation with service characterized as under other than honorable conditions unless he or she is afforded the right to present his or her case before an administrative separation board.  The Soldier will be afforded the advice and assistance of counsel.  Such discharge must be supported by approved board findings and an approved board recommendation for discharge under other than honorable conditions.

	b.  As an exception to the above, a discharge with service characterized as under other than honorable conditions may be issued without board action if the Soldier waives his or her right to board action.

	c.  When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to private/pay grade 
E-1 in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), chapter 10.

	d.  When the notification procedure is required for separation, the commander will notify the Soldier in writing.  Failure of a Soldier to respond to this notification within 30 calendar days will constitute a waiver of his or her rights.

	e.  A Soldier may be discharged for misconduct when it is determined the Soldier is unqualified for further military service by reason of commission of a serious military or civilian offense, if the specific circumstances of the offense warrant discharge and a punitive discharge would be authorized for the same or a closely-related offense under the Uniform Code of Military Justice.

	f.  Paragraph 2-9 provides that an honorable characterization is appropriate when the quality of the Soldier’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.

	g.  Paragraph 2-9 also provides that a characterization of under honorable conditions (general) is awarded to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he served in a USAR division "where corruption, racism, irrational, maleficence [malfeasance], ethnocentric practices are okay."  He also makes accusations concerning the actions of MG M____.  However, the records do not support his contention and he provides no evidence to support his accusations.  

2.  He has continued to blame everyone, from his unit to DFAS, for being overpaid for a period of 1 1/2 years.  He was released from active duty on 25 June 2005 and continued to receive active duty pay until 31 December 2006.  By his own admission to SSG E____, he knew he was receiving pay he was not entitled to receive.

3.  It is not reasonable to conclude an E-8 with 27 years of service and 6 years in MOS 42L would have unintentionally allowed himself to continue to receive unearned active duty pay.  Simply forwarding a copy of his orders releasing him from active duty or his DD Form 214 to DFAS would have been sufficient to stop his active duty pay.  Instead, he elected to continue receive the payments for 1 1/2 years until someone discovered the error.

4.  After his personal appearance before the administrative separation board, the board determined that he did commit the serious offense of larceny of government funds.  On 23 February 2010, a jury in U.S. District Court convicted him of converting public funds and making false statements to the FBI, the Board of the U.S. Army conducting his separation hearing, and to a major general of the U.S. Army.

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  MG M____ directed the applicant's appearance before an administrative separation board, even though he had technically waived his rights by failing to timely submit an election of his rights.  Further, the type of discharge and the reason for separation were appropriate considering all the facts of the case.

6.  In promoting the applicant to master sergeant, the Army reposed special trust and confidence in his patriotism, valor, fidelity, and professional excellence.  The applicant violated this special trust and confidence.  Due to the seriousness of his offense, his service was unsatisfactory.

7.  In view of the above, there is an insufficient basis to upgrade his discharge to honorable or general under honorable conditions.

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)                                         AR20130007508



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ABCMR Record of Proceedings (cont)                                         AR20130007508



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