BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140005974


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:

	a.  an upgrade of his bad conduct discharge (BCD) to under honorable conditions (general) or honorable;

	b.  the Army Board for Correction of Military Records (ABCMR) obtain copies of his pay records to determine if he was properly paid in the rank/grade of:

* sergeant (SGT)/E-5, from 15 July 2006 to 14 February 2007 
* private (PVT)/E-1, from 14 February 2007 to 31 March 2008

	c.  the payment of any monies that were erroneously withheld from him.

2.  The applicant states, in effect, he did not desert the Army.  He was absent without leave (AWOL) for less than 24 hours due to a crisis situation involving his mother who lived in Beirut, Lebanon.  The area in and around his mother’s neighborhood was becoming very hostile and he needed to remove her from the area.  He requested emergency leave but was denied.  As a result, he was arrested by military police, incarcerated, and subsequently court-martialed.  His court-martial resulted in a reduction in rank from E-5 to E-1, a 9-month prison sentence, and a bad conduct discharge.  He did not receive E-5 pay from 15 July 2006 to 14 February 2007, nor did he receive pay as an E-1 from 14 February 2007 to 31 March 2008.  To make matters worse, the Internal Revenue Service (IRS) taxed him for money he did not receive.

3.  The applicant provides:

* three self-authored statements
* Orders Number TF-356-43, dated 21 December 2004
* Permanent Orders Number 3BCT-323-17, dated 20 November 2004

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 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.  After having previous enlisted service, the applicant enlisted in the Regular Army on 8 May 2000 and served through a series of enlistments.  He held military occupational specialty 92A (Automated Logistical Specialist).  He served in Iraq the 3rd Battalion, 8th Cavalry Regiment, 1st Cavalry Division.  

3.  Permanent Orders (PO) Number 3BCT-323-17, issued by Task Force 15th Personnel Services Battalion (PSB), Camp Liberty, Iraq on 20 November 2004, awarded him the Army Good Conduct Medal (1st Award).

4.  PO Number TF-356-43, issued by Task Force 15th PSB, Camp Liberty, Iraq, on 21 December 2004, promoted him to the rank/grade of sergeant (SGT)/E-5 effective 1 January 2005.

5.  His record contains a sworn statement, issued/signed by Hanna, a female Iraqi house maid, on 13 January 2005.  She stated that on 12 January 2005 she was approached by the applicant at the big house while she was getting her purse.  The applicant told her that if she did not marry him [the enjoyment, pleasure marriage/temporary marriage (Shiite type of marriage)], he would tell all the Iraqis on the Forward Operating Base (FOB) that she is a prostitute and that he will get her fired from her job by getting her in trouble.  He had told her he would do so before but he never appeared to be serious, until now.  Now he is stalking her and had become very serious.  This is why she cannot stay in the house and had to leave all the time.  
6.  On 16 January 2005, his company commander, Captain (CPT) TBS issued him an administrative restriction/counseling stating:

	a.  Effective immediately, he was under a no contact order towards Hanna (a female Iraqi house maid), meaning he was not permitted to have any physical or verbal contact with Hanna.  To facilitate the order, and for his safety, his place of duty was re-designated to the Headquarters and Headquarters Company (HHC) command post located in the Hawk House.  His work hours were from 0600-1900 daily.  During those hours he was to be escorted to and from the chow hall.

	b.  He was ordered to remain on stand-by as an interpreter, but other than that he will remain inside of the company building.  He was also informed he was not allowed off the FOB unless it was for official business.  He was also told that he should consider the memorandum a direct order from a commissioned officer, and that CPT TBS would reevaluate his restriction on a weekly basis to determine if the restriction was still necessary.  However, until he was personally informed by CPT TBS that the restriction had been lifted he must comply with the order.  

7.  His record contains a memorandum for record (MFR) issued by his immediate commander on 16 January 2005.  This MFR summarizes the events contained in various sworn statements and counseling statements in the applicant's record and included the commander's own observations regarding two incidents that occurred on 15 January 2005.

	a.  The first incident occurred when Staff Sergeant (SSG) DAJ, the applicant's Noncommissioned Officer in Charge (NCOIC), came forward about a statement issued by a house cleaner named Hanna.  Master Sergeant (MSG) Lxxxxx, the FOB Mayor with responsibility for all FOB workers, presented CPT TBS with the statement from Hanna.  The statement indicated that the applicant was seeking some kind of sexual favor from her or he would get her fired.  CPT TBS also received a copy of a counseling from SSG DAJ stating Hanna had been in the applicant's room with the door partially closed, even though General Order Number 1 stated females could not be in a male Soldier's room.  

		(1)  CPT TBS decided that Hanna's statement and the counseling from SSG DAJ did not completely clear up the matter, so CPT TBS asked SSG DAJ to write a sworn statement.  CPT TBS consulted legal on 15 January 2005.  Legal advised that if the sworn statement from SSG DAJ stated that Hanna and the applicant were in a compromising situation then CPT TBS could pursue nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  If not, CPT TBS still had grounds to implement a no contact order and move the applicant into a room that forced him to have other male roommates.  SSG DAJ's statement did not imply improper or sexual contact but did seem to put the applicant in an awkward position with an Iraqi National.  To remove the applicant from the situation and to maintain a professional command climate, CPT TBS decided the applicant would be moved to another room and CPT TBS issued him a verbal no contact order and explained that it meant no talking, touching, or information flow from him to Hanna.  It was CPT TBS's intent to write down the order in the form of counseling on 16 January 2005.  

		(2)  On 16 January 2005, at approximately 0830, SSG DAJ came to CPT TBS's office to speak with him and the first sergeant (1SG).  Hanna and Axxx, one of the battalion interpreters, wanted to let CPT TBS know that the applicant had called Hanna the night of 15 January 2005 several times and had called her once the morning of 16 January 2005.  She had the number of the cell phone and made the comment that it was a phone of another FOB worker.  SSG DAJ informed CPT TBS that the applicant was in the conference room in the battalion command house.  CPT TBS decided he would like to talk to the battalion commander and explain to him that he, CPT TBS, was going to conduct a health and welfare inspection of the applicant's room and person to search for the cell phone.  They were standing outside of the house when Hanna said that he had just called her.  CPT TBS then decided to go back to his office and have Hanna call the applicant.  She called the cell phone.  SSG DAJ heard it ring in the conference room and walked in to find the applicant retrieving the cell phone from his pants.  CPT TBS verified the number that was ringing and it was CPT TBS's cell phone.

		(3)  1SG VJP took the applicant back to CPT TBS's command post and instructed him that he was to remain at the command post until he was relieved.  CPT TBS asked the applicant if he called Hanna and he said yes.  1SG VJP informed the applicant, again, that he was not to have any communication with Hanna, that when he went to the mess hall he would require an escort, and he was to remain ready to act as the battalion commander's interpreter in the event he was needed.

	b.  The second incident that occurred on 15 January 2005 was in reference to the applicant's leave destination.  Several days earlier the battalion S2 had heard the applicant had taken leave in Lebanon.  The applicant's leave was in October 2004 and the command thought he had arranged to see his family in Cyprus.  His request to go to Lebanon was denied by the brigade, battalion, and company commanders.  The S2 also noted that Lebanon was currently on a threat list and it would be potentially dangerous to a U.S. Soldier.  It was stated clearly by Lieutenant Colonel (LTC) Mxxxx and CPT TBS that the applicant was not allowed to go to Lebanon.  
		(1)  CPT TBS approached legal about this at the same time he asked about the house cleaner issue the morning of 15 January.  CPT TBS told legal that he wanted to conduct a health and welfare inspection to locate the passports.  Legal told CPT TBS he had enough information to justify a health and welfare inspection.  When CPT TBS returned to the FOB on 15 January 2005, he informed LTC Mxxxx what he was going to do and instructed 1SG VJP and SSG DAJ to get the applicant's passports.  1SG VJP returned with a U.S. passport and a Lebanese passport.  CPT TBS took the passports to an interpreter to read the Visa stamps.  The interpreter said that there was an entrance Visa to Lebanon on 14 October 2004 and an exit Visa on 30 October 2004.  

		(2)  CPT TSB informed LTC Mxxxx of this evidence and told him he was going to proceed with UCMJ punishment for disobeying a direct order from a commissioned officer.  CPT TBS read the applicant his rights and informed him of what the charge was.  CPT TBS asked the applicant if he wanted to make a statement at that time.  The applicant declined to make a statement at that time and stated he wanted to see a lawyer before he made any statement.  

8.  On 8 February 2005, he accepted NJP under the provisions of Article 15 of the UCMJ for willfully disobeying the lawful orders of two commissioned officers (CPT TBS and LTC Mxxxx) not to travel to Lebanon during rest and relaxation leave by traveling to Lebanon on or about 14 October 2004; and for willfully disobeying a command from CPT TBS to have no contact with Hanna, at FOB Warhorse, Baghdad, on or between 15 January 2005 and 16 January 2005.  His punishment included a reduction to specialist (SPC)/E-4; forfeiture of $300.00; extra duty for 45 days; and restriction for 45 days.  He elected not to appeal his punishment.

9.  On 5 October 2006, he was arraigned at Fort Hood, TX, at a general court-martial convened by the Commander, 1st Cavalry Division for violating Article 85 of the UCMJ; specifically, one specification of Charge I, on or about 15 July 2006, without authority and with intent to remain away therefore permanently, absenting himself from his unit and remaining so absent in desertion until he was apprehended on or about 15 July 2006.  

10.  He pled not guilty to the charge and specification.  The court found him guilty to the lesser offense of being AWOL and sentenced him to confinement for fifteen (15) months and a BCD.  On 14 February 2007, the convening authority approved the sentence and except for the part of the sentence extending to a BCD, ordered it executed.  The applicant was credited with 89 days of confinement against the sentence to confinement.

11.  As promulgated in General Court-Martial Order Number 298, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, on     30 October 2008, in the general court-martial case of the applicant (currently assigned to Personnel Control Facility, Garrison Support Unit, U.S. Army Field Artillery Center Fort Sill, OK), the sentence to confinement for 15 months and a BCD, was finally affirmed.  The automatic reduction to the pay grade of private/E-1 was ordered effective 14 February 2007.  He was credited with 89 days of confinement against the sentence to confinement.  That portion of the sentence extending to confinement had been served and the bad conduct discharge was ordered to be executed. 

12.  He was discharged on 31 March 2009.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged from the Army as a result of a court-martial and received a bad conduct characterization of service.  This form further shows he completed a total of 6 years, 2 months, and 12 days of creditable military service and had over 11 months of lost time.

13.  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.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides for the following characterization of service: 

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.

	c.  Paragraph 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

15.  The Manuel for Courts Martial, Article 58a of the UCMJ, states that unless otherwise provided in regulations to be prescribed by the Secretary concerned, a court-martial sentence of an enlisted member in a pay grade above E–1, as approved by the convening authority, that includes a dishonorable or BCD; confinement; or hard labor without confinement; reduces that member to pay grade E-1, effective on the date of that approval.

16.  Army Regulation 27-10 (Military Justice), paragraph 5–29e(2) states automatic reduction to the lowest enlisted pay grade by operation of UCMJ, Article 58a will be effected in the Army only in accordance with this paragraph.  Reduction to the lowest enlisted pay grade will be automatic only in a case in which the approved sentence includes, whether or not suspended, either a dishonorable or BCD, or confinement in excess of 180 days or 6 months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was AWOL for less than 1 day and his AWOL resulted from an attempt to remove his mother from Beirut.  He also contends that he was improperly paid in either the rank of SGT from 15 July 2006 to        14 February 2007, or the rank of PVT from 14 February 2007 to 31 March 2008.

2.  His records show he was promoted to SGT on 1 January 2005 and then subsequently received NJP for going to Beirut without permission and for violating a no contact order.  As a result, he was reduced to SPC on 8 February 2005.  

3.  The applicant was not authorized pay in the grade of E-5 from 15 July 2006 to 14 February 2007 because he held the rank/grade of SPC/E-4 during that period. Furthermore, there is no evidence of record and he has not provided any evidence to show he was able to re-attain the rank of SGT after his reduction.  

4.  There is no evidence of record and he has not provided evidence confirming his statement that his AWOL in 2006 was propagated in an attempt to rescue his mother from Beirut.  However, it is likely that he was attempting to go on a second unauthorized trip to Beirut, in violation of orders issued by his chain of command, as such; his first unauthorized trip to Beirut was most likely considered during his court-martial proceedings.

5.  The evidence of record shows he was convicted by a general court-martial which was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted, AWOL.

6.  He was given a BCD and automatically reduced from E-4 to E-1, the lowest enlisted grade on 14 February 2007, pursuant to an approved sentence of a general court-martial.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

7.  Based on his misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

8.  He has not provided any Leave and Earning Statements or pay records to show he was not properly paid during the periods in question, nor had he provided the tax returns he mentioned to show he was taxed for monies he did not receive.  The ABCMR is not an investigative agency, the burden of proof lies with the applicant, and if the applicant wishes the Board to review these documents he must provide them as evidence.  

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)                                         AR20140005759



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ABCMR Record of Proceedings (cont)                                         AR20140005974



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