IN THE CASE OF:	

		BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20140001738 


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, in effect, his dismissal from the Army be overturned.  

2.  The applicant states:

	a.  He has served for 33 years with two one-year overseas deployments.  He was dismissed from the Army for having a humiliating and degrading disorder (Obsessive Compulsive Disorder), known as Kleptomania.  He was diagnosed in July 2008 by military mental health professionals.  This condition knows no rank, race, social status, or gender.  He regrets his actions.  Due to the stigma of this disorder, he never sought help.  When he did seek help, he was confident that with medications and professional help, he would not under another traumatic event of shoplifting again.  He was wrong.  

	b.  Upon his return from Kuwait, he had a relapse due to several factors while at the Wounded Warrior Battalion, Fort Benning, GA.  First, there was a medication error (incorrect dosage) by his Army primary care physician.  Then, his case manager ignored numerous requests for a mental health consultation.  He then requested help through the Warrior Transition's "Comprehensive Transition Plan (CTP)," which is a system developed to help Soldiers transitioning back into society but the CTP did not help him.  Lastly, because of the legal issues involving (kleptomania), he was denied necessary dental surgery.  



	c.  When his medication is taken at the prescribed dosage, it enables him to have self-control over his compulsion.  In fact, he has been accident free for over 3 years.  He can confidently say the compulsion is dormant when he is at the proper medical dosage.  He spent 3 1/2 years in the appeal process with three different attorneys.  The only communication occurred when called.  He was an above-average Soldier who exceeded military standards.  He maximized the Army Physical Fitness Test for over 25 years and he had 4 commands spanning over a decade of military service.  

	d.  He is not a bad person.  He is a man and a Soldier who did bad things that he regrets.  His central argument is that: 

* he received inadequate legal counsel and legal counsel lied to him
* the Article 32 hearing affected administrative action/retirement
* there were medical errors
* all actions were formalities
* he did not receive a fair trial
* he was overly medicated and in pain during the court-martial

3.  The applicant provides:

* Legal documentation pertaining to the court-martial
* Affidavit from his wife
* Multiple certificates of training, achievement, and commendation
* Officer Evaluation Reports
* Army Physical Fitness Test Scorecards
* Résumé and Verification of Schooling and Training
* Medical documentation

CONSIDERATION OF EVIDENCE:

1.  The applicant previously served in an enlisted status in the Army National Guard (ARNG) from 2 October 1980 to 23 July 1982.  He was first appointed as a Reserve commissioned officer in the ARNG on 24 July 1982. 

2.  He served in a variety of positions, in various States of the ARNG (Maine, Georgia, Tennessee, Maryland, and Florida (FL)), and in troop program units of the U.S. Army Reserve (USAR).  He was promoted to major on 23 November 1999.  



3.  On 9 September 2002, the FLARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 

4.  In June 2003, while a member of the FLARNG, he was issued a General Officer Memorandum of Reprimand (GOMOR).  He was reprimanded by the Commanding General, 32nd Army Air and Missile Defense Command for calling the wife of a deployed enlisted Soldier assigned to this command, on Mother's Day, and relaying to her unsubstantiated rumors that her husband was having an affair; and for wrongfully using his assigned Government access code to make personal long-distance telephone calls. 

5.  He was honorably separated from the ARNG on 6 February 2004 and he was transferred to the USAR Control Group (Reinforcement).  While in the USAR, he was assigned to various troop program units, most noticeably the 1159th Terminal Supervisor Team, Orlando, FL.  He was also promoted to lieutenant colonel on 30 December 2005.

6.  Between December 2007 and 2012, he was issued multiple mobilization orders, with several amendments.  He appears to have entered active duty on 5 January 2008. 

7.  On 3 December 2007, the U.S. Army Human Resources Command (HRC) published Orders A-12-723276 ordering him to active duty for operational support for 11 months and 30 days, beginning on 5 January 2008 and ending on 3 January 2009.  He was assigned to Fort Eustis, VA, and attached to Headquarters, Central Command, MacDill Air Force Base, FL, with duty in Kuwait.  

8.  On 11 November 2008, at Fort McPherson, GA, he was convicted by a general court-martial of:

* one specification of stealing sandals and flags, property of the Army and Air Force Exchange Service (AAFES) at Camp Arifjan, Kuwait
* one specification of wrongfully fleeing from apprehension after stealing sandals from the Post Exchange (PX) after a gentleman from the PX security identified himself, and wrongfully fleeing from apprehension after stealing flags from the PX by starting to run, after being told to stop

9.  The court sentenced him to a reprimand, confinement for 60 days, a forfeiture of $1,000 pay for 5 months, and a $5,000 fine or to serve additional confinement for 5 months if the fine was not paid.  


10.  On 30 January 2009, HRC published Orders A-01-903436 ordering him to active duty for 179 days, beginning on 10 November 2008 and ending on 7 May 2009.  He was assigned to Headquarters and Headquarters Company, Army Central Command, Camp Arifjan, Kuwait, for Uniform Code of Military Justice (UCMJ) processing.  

11.  On 26 February 2009, the convening authority approved only so much of the sentence as provides for a reprimand, a fine of $5,000, a forfeiture of $1,000 pay for 5 months, and confinement for 60 days.  He was also reprimanded for stealing from AAFES on two separate occasions.  He fled from security the second time he stole and had to be tackled in public by several enlisted Soldiers. As a senior commissioned officer, his conduct was embarrassing and unacceptable. 

12.  On 7 May 2009, HRC published Orders A-05-913284 ordering him to active duty for 60 days, to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program, beginning on 7 May 2009 and ending on 5 July 2009.  He was assigned to the Warrior Transition Battalion, Fort Benning, GA.  These orders were subsequently amended several times to extend his period of active duty, to 14 April 2012, and/or change his unit of assignment/attachment.

13.  On 11 May 2009, HRC published Orders A-05-913284A01, amending Orders A-05-913284, to show the period of active duty be 358 days, ending on 29 April 2010. 

14.  On 14 July 2009, court-martial charges were preferred against the applicant for two specifications of stealing five challenge coins at Fort Benning, GA, on or about 17 June 2009. 

15.  On 20 October 2009, after two delays had been granted at the request of the applicant, an Article 32 hearing was conducted with the applicant and his civilian and military counsel present.  The hearing centered on the applicant's alleged offense of shoplifting from the PX on 17 June 2009. 

16.  On 13 November 2009, an investigating officer (IO) who had been appointed in accordance with Article 32, UCMJ investigated the charges and rendered an IO Report.  The IO recommended the applicant's separation from the service.  

17.  On 25 May 2010, he was convicted by a general court-martial of one specification of stealing five challenge coins, while in uniform, at Fort Benning, GA.  The court sentenced him to dismissal from the service.  The convening authority approved his sentence at a later date (19 January 2011) but the sentence would not be executed pending completion of the appellate review. 

18.  On 23 February 2012, HRC published Orders A-02-202234, ordering him to active duty for 365 days, for UCMJ processing (Appellate Leave), beginning on 15 April 2012 and ending on 14 April 2013.  He was assigned to the Personnel Special Processing Company, Fort Knox, KY.

19.  On 15 November 2012, the U.S. Army Court of Criminal Appeals affirmed the findings and the sentence.

20.  On 7 March 2013, the U.S. Court of Military Appeals denied the applicant's petition for a grant of review.

21.  On 4 November 2013, the Assistant Secretary of the Army for Manpower and Reserve Affairs approved and ordered executed the sentence of dismissal.

22.  Headquarters, Department of the Army, Washington, DC, General Court-Martial Order Number 24, dated 15 November 2013, shows that after completion of all required post-trial and appellate reviews, the Chief of Staff of the Army directed that the applicant "ceases to be a member of the U.S. Army at midnight on 29 November 2013" by order of the Secretary of the Army.

23.  Article 74 of the UCMJ 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.

24.  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.

25.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve component and discharge functions for all officers on active duty for 30 days or more.

	a.  Paragraph 1-22(a) 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, or the final revocation of a security clearance for reasons that do not involve acts of misconduct, for an officer.  

	b.  Paragraph 1-22(b) states 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.

	c.  Paragraph 1-22(c) states 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.  Officers will normally receive an "Under Other Than Honorable Conditions" when they resign for the good of the service, are dropped from the rolls of the Army, are involuntarily separated due to misconduct, moral or professional dereliction, or for the final revocation of a security clearance as a result of an act or acts of misconduct, including misconduct for which punishment was imposed; or are discharged following conviction by civilian authorities.

	d.  Paragraph 1-22e states no formal discharge certificate will be issued when the officer is dismissed as a result of sentence of court-martial.

DISCUSSION AND CONCLUSIONS:

1.  After having received a GOMOR in 2003 for misconduct that appears to be unrelated to kleptomania, the applicant was twice convicted by a general court-martial of various offenses that do appear to be related to kleptomania.  As a result of his second conviction he was sentenced to a dismissal from the service and the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

2.  On 7 March 2013, the U.S. Court of Appeals for the Armed Forces denied his petition for a grant of review.

3.  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.  Any contention with regard to his medical condition or the court-martial would or should have been addressed during the court-martial or the appellate process.  That was the appropriate forum to address issues of this nature.  
4.  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.

5.  His sentence was appropriate given the gravity of the offenses for which he was convicted.  As a result, there is an insufficient evidentiary basis to support clemency 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 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)                                         AR20140001738



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ABCMR Record of Proceedings (cont)                                         AR20140001738



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