IN THE CASE OF:	  

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20140012033 


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 narrative reason for his separation "in lieu of trial by court-martial" on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed so he may request to retire.

2.  The applicant states:

   a.  He is not proud of the circumstances that led to his departure but felt it was the only real option afforded to him despite all attempts by himself, his superior officers and what he read as official guidance at the time.  Currently, he is unable to retire due to his narrative reason for separation.  

   b.  After the events of 9/11, he volunteered to mobilize.  In his first tour his family experienced several difficulties such as a denial of TRICARE service (due to U.S. Army Reserve (USAR) program errors) and a significant pay shortage in what he made as a civilian.  While this was very difficult, they endured.  He was asked to serve back to back tours and assist in developing a classified capability.  He agreed but realized that it would continue to contribute to the dwindling financial situation at home.

   c.  He requested and received just over a $100.00 per month allowance that he was not entitled to.  While he admits that leaving the active Army may have been the correct choice, he could not and instead made the terrible decision to continue his contribution to his country and try and ease the burden on his family.  The next 30 months he traveled in support of the mission.  He was deemed the subject matter expert by his general officer and left active duty in June 2005.  He returned to USAR status and was promoted to sergeant major in 2007.

   d.  In June 2008, he was approached with a financial audit.  He explained everything that had happened and provided all documentation willfully.  He had done wrong in the past but would stand on the circumstances of his situation at the time, his service record, and the support of his commanders.  He met with his USAR commanding officer and told him the whole story and braced for the next event.  He conferred with the USAR Judge Advocate General's (JAG) office and later opened an inquiry.

   e.  Not long after U.S. Army Space and Missile Defense Command (USASMDC) transferred the case to their purview claiming as USAR they could not handle this type of action.  He was taken out of his Reserve unit and placed on active duty at Fort Carson, CO.  While there for nearly a year he contributed to the Army mission as an Operations Sergeant Major and assisted units in theater.  His noncommissioned evaluation reports throughout this time show he did not abandon his duties as a SGM in light of what was going on around him.  On two occasions, two separate commanders of the brigade wrote requests to the convening authority asking for alternative action outside of a court-martial which was offered by the USASMDC JAG which followed him as a special prosecutor in each unit he transferred.

   f.  He was administratively transferred out of that unit and into another unit.  He continued working in the previous work space, but with a different commanding officer.  To this day he has not met the officer who signed advising that the court-martial should move forward.  His security clearance was suspended and every temporary duty trip he took since 2002 was examined.  To make his situation look worse, an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) was proclaimed to show that he had been stealing on nearly all of his trips.  He requested an Army Regulation 15-6 but was told "if we use it, you will get a copy."  

   g.  This information was presented to the convening authority without the applicant being able to respond.  He is certain the decision to proceed with legal action was based on this inaccurate presentation.  The information was passed on to the U.S. Army Central Personnel Security Clearance Facility requesting to revoke his clearance.  He appealed to the Defense Office of Hearings and Appeals and he was able to answer each of the concerns in the drafted Army Regulation 15-6 and to satisfy a judge that none of the trips he had taken had improprieties.  USASMDC JAG submitted to the Defense Finance and Accounting Service (DFAS) to have all his monies collected and now a bill that the  Fort Carson Finance Office testified was only a couple of thousand dollars has become a $48,000.00 collection with no process for him to argue because of how he left the service.

   h.  The JAG office called the officers who put him in for the Soldier's Medal to ensure it was legitimate but they never called his bank about his dire financial status during his mobilization.  He had requested several times during this ordeal to reimburse the funds and retire but he was denied by the JAG office.  Senior officers wrote statements in support of his continued service and after months of conflicting data from DFAS and the SMDC staff he was offered a chapter 10.  

   i.  Based on his initial admittance, his attorney advised he would have a conviction which would affect his civilian employment.  He took the chapter 10 knowing there was really no other choice.  He is grateful to Army Review Board Agency for upgrading his discharge to reflect "General Under Honorable Conditions."  It is humbling to view his new DD Form 214 and reflect on a career knowing that his poor decision in the above matter serves as a significant detractor from the work he had held so dearly for nearly three decades.  

   j.  While he recognizes his wrongdoing, he believes he was treated unfairly.  Consideration was never given for his service, circumstances surrounding the event in question or his request to resolve the debt and retire.  He could have walked away during our time of war but he did not.  Instead he chose to remain in service and do whatever he could to help.  He served 27 years, was decorated well and never got into any trouble.  A review of his military record will show that he supported the Army at every turn and always scored high marks.

   k.  He earned the continued respect and support of his commanders and fellow Soldiers and yet when consideration could have been given to allow his continued service he was denied without any audience with those determining his fate.  Today, the outcome denies him some of the things he served 27 years for.  His children cannot use his GI Bill, and he does not qualify for TRICARE.  He is not eligible for a retirement he feels he has earned and he asks the Board to allow him his retirement under the banner of fairness and a holistic view of who he was as a Soldier and the impact he has made. 

3.  The applicant provides:

* DD Form 214
* 2 pages of electronic mail (email)
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report)
* 7 memoranda
* 16 pages of DFAS Out of Service Debt Payment Confirmations
* 11-page Decision by the Department of Defense, Defense Office of Hearing and Appeals 

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 16 November 1983 for a period of 4 years and he reenlisted in the USAR on 26 October 1990.  Among the awards he earned are the Soldier's Medal, the Meritorious Service Medal, two Army Commendation Medals, and six Army Achievement Medals.

3.  On 3 April 2009, charges were preferred against the applicant for:

   a.  Violation of Article 121 of the Uniform Code of Military Justice (UCMJ) in that the applicant did, at or near Fort Carson, CO,  on diverse occasions, between on or about 1 January 2003 to 14 June 2005, steal U.S. currency of a value greater than $500.00, the property of the U.S. Government.

   b.  Violation of Article 132 of the UCMJ in that the applicant did, at or near Fort Carson, CO, on diverse occasions, between on or about 31 December 2002 and 14 June 2005, presented travel vouchers to DFAS in an amount greater than $500.00 for reimbursement of lodging expenses, which claims were false and fraudulent, in an amount greater than $500.00, in that the applicant did not have reimbursable lodging expenses as claimed, and were then known by the applicant to be false and fraudulent.
   
   c.  Violation of Article 132 of the UCMJ in that the applicant for the purpose of obtaining the approval, allowance, and payment of claims against the United States in an amount greater than $500.00, did at or near Colorado Springs, CO, on diverse occasions, between on or about 2 July 2004 and on or about 14 June 2005, make and use certain papers, to wit:  numbered lodging receipts which said papers, as he, the applicant knew contained statements that said the applicant had paid $1,650.00 in rent, which statements were false and fraudulent in that the applicant had not paid $1,650.00 in rent as stated on the receipts, and were then known by the applicant to be false and fraudulent.
   
   d.  Violation of Article 132 of the UCMJ in that the applicant for the purpose of obtaining the approval, allowance, and payment of claims against the United States in an amount greater than $500.00, did at or near Colorado Springs, CO, on diverse occasions, between on or about 10 February 2003 and on or about      2 June 2004, make and use certain papers, to wit:  personal checks, which said papers, as he, the applicant knew contained statements that said the applicant had paid $1,650.00 in rent, which statements were false and fraudulent in that the applicant had not paid $1,650.00 in rent as stated on the personal checks, and were then known by the applicant to be false and fraudulent.
   
   e.  Violation of Article 132 of the UCMJ in that the applicant for the purpose of obtaining the approval, allowance, and payment of claims against the United States in an amount greater than $500.00, did at or near Colorado Springs, CO, on diverse occasions, between on or about 31 December 2002 and on or about      14 June 2005, make and use certain papers, to wit:  apartment lease contracts, which said papers, as he, the applicant knew contained statements that said the applicant had a lease contract with The Vineyards of Colorado Springs for  $1,650.00 a month in rent, which statements were false and fraudulent in that the applicant did not then have a lease contract with The Vineyards of Colorado Springs for $1,650.00 a month in rent, and were then known by the applicant to be false and fraudulent.
   
4.  On 17 August 2009, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with both military and civilian legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Enlisted Personnel Separations).  In his request for discharge, the applicant indicated that:

* he understood he was being charged with violating multiple Articles of the UCMJ and he fully understood the elements of the offenses
* he was making this request of his own free will and had not been coerced by any person whatsoever
* he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or a dishonorable discharge
* he acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State law
* he elected to submit a statement on his own behalf; however, one was not found attached to the proceedings in his military record

5.  On 19 August 2009, subsequent to a legal review for legal sufficiency, the separation authority approved the applicant's request for voluntary discharge and directed that he be given an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  On 24 September 2009, the applicant was discharged accordingly.  

6.  On 18 December 2013, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge and determined it was too harsh based on his length and quality of service to include his Soldier's Medal and as a result it was inequitable.  The ADRB voted 4 members to 1 to upgrade his discharge to "general, under honorable conditions."  However, the Board unanimously voted to against changing the narrative reason for his separation.  Accordingly, he was issued a new DD Form 214 which shows he was discharged in accordance with Army Regulation 635-200, chapter 10, in lieu of court-martial with a character of service of under honorable conditions (general).  His separation code is listed as "KFS." 

7.  The applicant provides several documents surrounding the applicant's appeal to retain his security clearance to include favorable character references and a decision document from the Defense Office of Hearings and Appeals in which he highlights that the administrative judge was convinced by substantial evidence that he did not engage in any improprieties that were raised concerning the subject of the Army Regulation 15-6.  However, all formal findings were against the applicant and the action to revoke his security clearance was sustained.

8.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

9.  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. 
Table 2-3 (SPD/RE Code Cross Reference Table) states the SPD code "KFS" applies to persons who are discharged in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.

10.  Paragraph 3-7b of Army Regulation 635-200 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be changed to show a reason for separation other than "in lieu of trial by court-martial" so he may retire.

2.  The evidence indicates the applicant requested to be discharged in lieu of trial by court-martial and that his request was approved.  The applicant has not provided any evidence showing he did not request separation in lieu of court-martial.  

3.  Based on the regulatory authority for the applicant's separation, Army Regulation 635-5-1 specifies that the SPD code be "KFS" will be entered on the DD Form 214 and the narrative reason for discharge will be entered as "in lieu of trial by court-martial."  By regulation, the applicant's DD Form 214 is correct.  

4.  There is no evidence of error or injustice.  The ADRB clearly determined that the reason for his discharge was both proper and equitable.  The applicant has not provided evidence which sufficiently mitigates that decision.

5.  In light of the foregoing, there is no evidentiary basis to support the applicant's request.






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)                                         AR20140012033





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140012033



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1