IN THE CASE OF:  	  

		BOARD DATE:  8 October 2015 	  

		DOCKET NUMBER:  AR20150001140 


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 that his dismissal from the service be changed to a discharge under other than honorable conditions and that he be allowed to retire in the rank of colonel.

2.  The applicant states, in effect, in a three-page petition, that he retired from active duty in the rank of colonel on 5 April 2008 and during his retirement was selected for promotion to the rank of brigadier general.  He accepted the promotion and on 8 June 2012 he was convicted pursuant to his pleas by a general court-martial of two specifications of making false official statements, two specifications of conduct unbecoming an officer and a gentleman, and the wearing of unauthorized medal, badges, ribbons and devices.  He goes on to state that he accepts responsibility for his misconduct and asks the Board to consider the long term and collateral effects of a dismissal which far exceeds the appropriateness of a dismissal as punishment for his offense.  He lost his government civilian position and has a stigma that prevents him from obtaining employment.  He also states he is now divorced and no longer able to financially support an adult child who has serious health issues and his grandchildren.

3.  The applicant provides a three-page petition explaining his application, two pages from Army Regulation 27-10, his court-martial order, seven third party letters of support and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).



COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board consider the applicant’s request for clemency.

2.  Counsel provides no arguments in the case. 

3.  Counsel provides no additional documents. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving in the Utah Army National Guard in the rank of major when he was issued his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  

2.  The applicant was serving in the U.S. Army Reserve (USAR) on active duty in the rank of colonel (COL) when his request for sanctuary retirement was approved by the U.S. Army Human Resources Command (HRC) on 26 November 2006 with an effective date of 30 April 2008.  

3.  On 30 April 2008, he was issued a DD Form 214 that shows he was retired in the rank of COL/pay grade O-6 based on sufficient active duty service for retirement.    

4.  On 1 May 2008, the HRC revoked the applicant’s approved request for sanctuary retirement and he was honorably released from active duty (REFRAD) and was transferred to the USAR Control Group (Reinforcement).  

5.  On 5 June 2008, a DD Form 215 (Correction to DD Form 214) was issued by HRC that corrected his DD Form 214 with an ending date of 30 April 2008 to show he was released from active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges) and transferred to the USAR Control Group (Reinforcement).  The reason for separation was completion of required active service vice retirement.

6.  On 5 May 2009, he was promoted to the rank of brigadier general (BG) in the USAR.

7.  On 8 June 2012, the applicant was convicted pursuant to his pleas by a general court-martial of two specifications of making false official statements (one of which was signing a DD Form 214 on 30 April 2008, while still serving as a COL, which he knew to be false), two specifications of conduct unbecoming an officer and gentleman, and four specifications of conduct prejudicial to good order and discipline in the armed forces (wearing of unauthorized medal, badges, ribbons and devices).  He was sentenced to confinement for 2 months and to be dismissed from the service.  However, the convening authority approved only so much of the sentence as provided for dismissal from the service.

8.  On 25 February 2014, the United States Army Court of Criminal Appeals affirmed the findings and sentence as approved by the convening authority and on 3 June 2014, the United States Court of Appeals for the Armed Forces denied the applicant’s petition for a grant of review. 

9.  Accordingly he was dismissed pursuant to a duly reviewed and affirmed court-martial conviction on 11 July 2014.  He was issued a DD Form 214 that shows he had served 23 years, 6 months, and 29 days of total active service and had 16 years, 1 month and 11 days of prior inactive service.  He also had 744 days of excess leave from 28 June 2012 to 11 July 2014.

10.  The applicant provided seven character reference letters attesting to his character as a hardworking, reliable compassionate leader and a loyal officer.  In effect, each author addressed the applicant’s pending court-martial proceedings and requested leniency and that he be allowed to retire with benefits associated with full retirement.  The authors thought a dismissal from the Army was too harsh of a proposed punishment.   

11.  Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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. 

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and the sentence were effected in accordance with applicable law and regulations, and the dismissal appropriately characterizes the misconduct he committed while serving as a COL and as a BG.

2.  The punishment directed and the reasons therefore appear to be appropriate considering the available facts of this case.

3.  The applicant's contentions and supporting documents have been noted and carefully considered; however, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his misconduct.
4.  The applicant was a senior Army leader and commander who violated the trust placed in him through his serious misconduct.  He admitted to his acts of misconduct and was appropriately tried, convicted and then dismissed from the service.  While he may now regret his actions because of the financial loss and stigma he has suffered, that in itself is not a sufficiently mitigating basis for granting him clemency.

5.  Since there appears to be no error or injustice in his dismissal, there also appears to be no basis for granting the requested relief.  

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)                                         AR20150001140



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ABCMR Record of Proceedings (cont)                                         AR20150001140



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