BOARD DATE:	  10 July 2014

		DOCKET NUMBER:  AR20130019529 


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:

* his bad conduct discharge be upgraded to honorable
* correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the narrative reason for separation as for the convenience of the government vice court-martial
* correction of his separation code to match the corrected narrative reason for separation
* restoration of his rank
* entitlement to all back pay
* he be retired vice discharged 

2.  The applicant defers his statement to his counsel.

3.  The applicant provides his DD Form 214, a self-authored statement, a letter, and a statement of support.

COUNSEL'S STATEMENT:

1.  Counsel states:

	a.  The applicant believes that the purpose for the discharge and the discharge narrative have been served and it is now appropriate that the proper characterization of his service be applied.  At the time of his separation on 20 January 2006, he had served in the Army for 16 years and 11 months.  He had distinguished himself as a Soldier and was finishing a stellar career.  He deployed to Iraq twice and had distinguished and honorable service in a combat zone.  Throughout his career, he was always recognized for his exceptional leadership ability through rapid advancement in rank.  Prior to his court-martial, he had exceptional Noncommissioned Officer Evaluation Reports (NCOERs) and no adverse counseling.  The court-martial is the sole adverse incident in his record.

	b.  His reasons for requesting a change in his discharge are that he was treated disparately and was subjected to selective prosecution, he had ineffective assistance of counsel at his court-martial, he never received a proper review of his clemency matters by the general court-martial convening authority (GCMCA), he was a victim of ineffective assistance of counsel at the appellate level, and the purpose of the bad conduct discharge has been served.

	c.  The applicant enlisted on 13 October 1987 in Memphis, TN, at the young age of 17 years old.  He deployed to Iraq in Operation Desert Storm and received a Bronze Star Medal for merit while deployed.  From 1991 to 1994, he was stationed at Fort Lee, VA, and went from squad leader to platoon sergeant (PSG).  He was promoted from E-4 to E-6.  He also graduated from Instructor School and received the instructor identifier.

	d.  From 1994 to 1997, he was stationed in Chicago, IL as a recruiter.  He distinguished himself in this difficult duty assignment by being named the number 1 recruiter in his battalion.  In 1997, he was promoted to sergeant first class (SFC)/E-7.  From 1997 to 2000, he served at Fort Campbell, KY, as a operations (OPS) NCO and PSG with the 102nd Quartermaster Company.  Finally, he was assigned to Korea where he served as a PSG and brigade OPS NCO with the 6th Cavalry Brigade.

	e.  His schools include Airborne, Air Assault, Pathfinder, Battle Staff, Primary Leadership Development Course, Basic NCO Course, and the Advanced NCO Course.  His awards include the Meritorious Service Medal, Bronze Star Medal, five Army Commendation Medals, five Army Achievement Medals, Presidential Unit Citation, and four Army Good Conduct Medals.  He was in line to receive a Meritorious Service Medal upon leaving Korea.

	f.  The applicant is very clear about the fact that he never intended to defraud the U.S. Government.  He admits he made a mistake but the mistake was not intentional.  He also made complete restitution and paid every dime back.  He fundamentally disagrees with the prosecutor's characterization of the events that resulted in a conviction in his case.

	g.  In 2000, while stationed at Fort Campbell, the applicant was on orders for a permanent change of station (PCS) to Korea.  As part of the move, he headed to Korea while his spouse and children moved to New York.  The transportation office at Fort Campbell coordinated the moves.  At some point, his spouse's place changed and she did not live in New York.  The applicant was not part of the decision-making process.  He had already moved to Korea and was performing his duties.  As happens with many Soldiers, mission came first and he had difficulty getting to the finance office.  He knew there were issues with his pay but believed they could be fixed.  He did not know he was erroneously receiving government money.  He did not intend to receive anything he was not due.  He was receiving improper amounts of basic allowance for housing (BAH); something that frequently occurs to Soldiers stationed in Korea.

	h.  When the investigation began, the applicant worked with the U.S. Army Criminal Investigation Command (hereafter referred to as CID) and helped with the investigation.  CID accused him of defrauding the government and he disagreed with their assessment.  Captain (CPT) B______, a member of Trial Defense Services, represented him for both the trial and clemency matters.  CPT B____ literally did no independent investigation of the facts of the case.  He refused to believe the applicant was innocent and threatened that he would serve over 5 years confinement for his offenses.  His advice was both false and self-serving as CPT B______ was leaving Korea and had an interest in wrapping up the case so he could get ready for his PCS move.  He told the applicant he had to plead guilty because there was no way they could win the case.

	i.  On 16 October 2002, a general court-martial sentenced the applicant to reduction in rank/grade to private (PVT)/E-1, confinement for 16 months, and a bad conduct discharge.  The judge did not adjudge forfeitures of pay and allowances.  On 14 December 2002, CPT B_______ submitted clemency matters to the GCMCA.  Although he previously advised the applicant on his clemency rights, he never consulted with the applicant, asked for additional matters, letters of recommendation, or anything that would help with the clemency appeal.  He simply requested the GCMCA approve the adjudged sentence and disapprove the forfeitures.  Once again his level of effort was minimal.  Against the desire of the applicant, he agreed with the Staff Judge Advocate's (SJA) advice to the GCMCA to approve the adjudged confinement and this clearly reflects ineffective assistance of counsel.  The GCMCA approved the sentence without any input from the applicant.

	j.  The applicant appealed the decisions of the trial and the GCMCA based on five errors.  The major error was the improper SJA ruling and ineffective assistance of counsel.  The United States Army Court of Criminal Appeal (USACCA) rendered a decision on 15 July 2004 and found the SJA failed to reference the clemency matters submitted by CPT B______; therefore, the clemency process was defective.  Major (MAJ) P___ and CPT M_________ represented the applicant as his detailed counsel and successfully appealed his case.  The 23 December 2002 final action of the GCMCA was set aside and remanded.  The USACCA did not take further action as without the clemency matters there was no reason for further action.  The applicant was never assigned additional counsel and was not allowed to submit letters of recommendation or additional documents.  By not following up on the actions taken after the appellate court's remand, the attorneys who represented the applicant were negligent and guilty of ineffective assistance of counsel.

	k.  The applicant's case was treated differently by his chain of command than other similar cases.  From 2000 to 2005, there were a number of cases that involved BAH fraud and inaccurate payments from the Defense Finance and Accounting Service and transportation.  Generally, these cases would result in either a letter of reprimand or a special court-martial.  When a Soldier had over 15 years of service and was close to retirement eligibility, the Soldier would be allowed to remain in the service and retire.  The applicant was subjected to selective prosecution by his chain of command.  For unknown reasons, the trial counsel disliked the applicant and appeared to have an interest in making his confinement sentence longer than normal.

	l.  CPT B______ did not zealously represent the applicant, he gave improper advice, did not investigate the facts, encouraged the applicant to plead guilty, and failed in the clemency matters.  He never got in touch with the applicant after the trial.  He also had a requirement to review and respond to the SJA advice to approve the sentence as adjudged.  In all his years of practice, counsel had never heard of a defense counsel agreeing their client should remain in confinement, especially without input from that client.

	m.  A discharge from military service is designed to demonstrate the character of both a Soldier's service and his personal character.  Throughout his service, the applicant had exemplary character.  This one mistake does not reflect the exceptional and honorable service he demonstrated throughout his long career.  Since his discharge, he has continued to demonstrate that his bad conduct discharge is not indicative of him as a whole person.  Society has an interest in recognizing Soldiers who have served honorably in both combat and peacetime.  The applicant is now a successful businessman and has distinguished himself in the community.  His desire to change his bad conduct discharge to an honorable discharge is a matter of pride.  This is evidenced by letters of recommendation from the local community and former [supervisor].


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 13 October 1987.  He served through several reenlistments and/or extensions and he was promoted to the rank of SFC on 1 July 1997.  On 15 January 2001, he was assigned to the 1st Squadron, 6th Cavalry Regiment, Korea.

3.  On 16 October 2002, he pled guilty to and was convicted by a general court-martial of:

* four specifications of signing a false record (between 4 October 2000 and 12 December 2001)
* one specification of larceny of U.S. currency in the amount of about $3,340.00
* one specification of larceny of U.S. currency in the amount of about $14,404.34
* one specification of submitting a fraudulent claim in the amount of $3,346.00

4.  He was sentenced to reduction to PVT, confinement for 16 months, and a bad conduct discharge.  His sentence was adjudged on 16 October 2002.  

5.  On 23 December 2002, the GCMCA approved the sentence and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  The applicant was subsequently confined at the Personnel Confinement Facility, Fort Sill, OK and the U.S. Disciplinary Barracks, Fort Leavenworth, KS.  


7.  On 28 May 2003, he was placed on administrative parole.  On 5 February 2004, he was placed on excess leave while awaiting appellate review.

8.  On 13 January 2005, the USACCA ordered that General Court-Martial Order Number 10, dated 4 November 2004, issued by the U.S. Army Combined Arms Center (USACAC) and Fort Leavenworth, be corrected by deleting the entire paragraph in the last sentence and substituting the following:  "The accused was arraigned at Osan Air Base, Republic of Korea, on the following offenses at a general court-martial convened by Commander, 19th Theater Support Command."  General Court-Martial Order Number 10 is not available for review with this case.

9.  General Court-Martial Order Number 9, dated 26 April 2005, issued by the USACAC and Fort Leavenworth, shows the applicant's sentence of reduction to PVT, confinement for 16 months, and a bad conduct discharge having been affirmed and complied with, the convening authority ordered the bad conduct discharge executed.  On 20 January 2006, he was discharged accordingly.

10.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a bad conduct characterization of service.  He completed 16 years, 11 months, and 9 days of net active service with 706 days of excess leave and 478 days (1 year and 4 months) of lost time due to being in confinement or on parole.

11.  His DD Form 214 also shows the following entries:

* item 18 (Remarks) - Member Has Completed First Full Term of Service
* item 26 (Separation Code) - JJD
* item 28 (Narrative Reason for Separation) - Court-Martial, Other

12.  A review of his records verifies the applicant enlisted/reenlisted as follows on:

* 13 October 1987, for a period of 3 years
* 7 May 1991, for a period of 3 years
* 28 April 1994, for a period of 3 years
* 5 December 1996, for a period of 3 years
* 9 November 1999, for an indefinite period

13.  The applicant provides a self-authored statement, undated, wherein he reiterated his counsel's contention of ineffective assistance of counsel.  In addition he stated:
	a.  On 16 October 2002, he was convicted of violating several articles of the Uniform Code of Military Justice.  He received BAH for his dependents at the higher rate for the State of New York although his family continued to stay in Tennessee.  He took responsibility for his poor judgment and negligent actions and realizes those actions discredited both his family and the Army.  He made full restitution of the fraudulent claim and served 6 months in confinement. 

	b.  Many like him are convicted by the tribunal (command) before they are tried and sentenced to punitive discharges which adversely affect their lives and careers forever.  Due to inadequacy of representation, he was confronted with this immediately after his trial and conviction.  He was a decorated combat veteran whom served his nation honorably for 14 years.  Due to his outstanding performance, he was selected for promotion to Master Sergeant after only 13 years of service.  He feels the commanding general never got to see the whole Soldier but only the isolated incident of bad judgment.

	c.  He and his family endured extreme hardship during his legal proceedings.  He returned home, was immediately employed, and enrolled in the Tennessee State University to enhance his skills.  He has worked hard to restore his reputation and became a small business owner that hires veterans.  He has been blessed to obtain employment and continue his education.  He is truly remorseful for the burden he put on others. 

14.  The applicant provides a statement of support, dated 18 June 2013, wherein Command Sergeant Major (CSM) G______, now retired, stated:

	a.  He was the CSM, 6th Cavalry Brigade, Korea, when the applicant was there as an SFC.  The applicant served as a PSG and Battle NCO and served superbly in both positions.  His extraordinary performance ranked him among the top 1 percent of the NCOs in the brigade.  After his unfortunate BAH fraud incident, he remained steadfastly committed to excellence by making immeasurable contributions to the brigade.

	b.  He has remained in contact with the applicant since his separation and he (the applicant) has assimilated himself into his community as a model citizen.  He raised three daughters as a dedicated Christian man, runs a trucking company with five employees, mentored at-risk children at the local Boys and Girls Club, served on the jail ministry team, completed a bachelor's degree upon release from confinement, and attained [employment] in a supervisory position.

	c.  CPT G______ made [the applicant's] case personal and put pressure on two Soldiers to write statements that were used against the applicant at his court-martial.  CPT O_____ made the decision to give the applicant an Article 15 but Lieutenant Colonel E_____ used his position to refer it to a court-martial.  The brigade was trying to set the tone for adjudicating BAH cases in Korea.  As brigade CSM, he feels that his and the applicant's officer in charge, MAJ D_____, recommendations were totally disregarded and not taken into consideration.

15.  Army Regulation 635-200, 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.

16.  Army Regulation 635-200, 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.

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that the SPD code of JJD is the correct code to assign Soldiers separated under the provisions of Army Regulation 635-200, chapter 3 by reason of court-martial.

18.  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 Board 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.

19.  Army Regulation 635-5 (Separation Documents), in effect at the time,prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for preparation of the DD Form 214.  It stated in item 18 (Remarks) enter "SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE."  Except for enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD" (specify dates).  For Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter "Continuous Honorable Active Service From (first day of service which DD Form 214 was not issued) Until (date before commencement of current enlistment)."  Then, enter the specific periods of reenlistments as prescribed above.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his bad conduct discharge appropriately characterized the misconduct for which he was convicted.  His claim that he had an exemplary service record until his court-martial is noted.  However, it can be presumed it was presented at his trial and was taken into consideration during his court-martial/appellate process and reflected in the sentence he received.  In addition, his counsel stated his claim of ineffective counsel was raised as an issue to be considered in mitigation during the appellate process.

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The applicant was convicted of submitting false claims and larceny of almost $18,000.00 of government monies over the course of at least a year.  Contrary to the contention of his counsel, he acknowledged he knew what he did was wrong and knew his family stayed in Tennessee versus moving to New York.  His actions were especially egregious considering the fact that he was a senior NCO and charged with setting an exemplary example for junior Soldiers and upholding the Army Values.  He failed to do either.

4.  Although he may have had been an outstanding NCO prior to his court-martial and may have become a distinguished businessman since his discharge, it does not mitigate his criminal behavior that led to the court-martial charges he was convicted of.  After a review of his record of service, it is clear his service did not meet the criteria for an honorable or a general discharge, or any other characterization of service other than the one he received.  

5.  In view of the foregoing, he is not entitled to any of the requested relief.

6.  However, in accordance with the governing regulation in effect at the time, the applicant's DD Form 214 should have shown his periods of enlistment and his honorable service up until the day prior to his last enlistment.  Therefore, his DD Form 214 should be corrected as recommended below.
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 a recommendation for partial relief.  As a result, the Board recommends item 18 of the applicant's DD Form 214 be amended by:

* deleting the entry MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE
* adding the following entries:

* Continuous Honorable Active Service From 19871013 Until 19991108
* IMMEDIATE REENLISTMENTS THIS PERIOD 19871013-19910506; 19910507-19940427; 19940428-19961204; 19961205-19991108

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 an honorable discharge, reason for separation, separation code, restoration of rank, payment of back pay, and retirement. 



      _______ _ 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.



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