APPLICANT REQUESTS:  In effect, the applicant requests that his general discharge be upgraded to honorable and that he be awarded severance (separation) pay.

APPLICANT STATES:  That he had improper legal counsel and that he was misrepresented during nonjudicial proceedings under Article 15, UCMJ.  He states that his discharge was based on an unproved misconduct charge during the nonjudicial proceedings.  He goes on to say that his accomplishments and his entire 10 plus years of service were not considered and that his punishment was unjust.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army on 12 April 1983 and served on active duty continuously until his discharge.

A sworn statement of 12 May 1993 by the applicant’s first sergeant reveals that the applicant admitted to the first sergeant that he fraudulently submitted completion notices for correspondence courses in his promotion packet.

In May 1993, conversation records between a personnel NCO at Fort Hood, Texas and an official at the Logistics Management College at Fort Lee, Virginia, revealed that the applicant had never completed nor had he ever been enrolled in the correspondence courses for which the applicant had claimed that he had completed.

A copy of a document based on a criminal investigation (CID) reveals that the applicant altered several correspondence course completion notices and certificates while stationed in Germany and had them placed in the military records as his own; that he appeared before a promotion board for Staff Sergeant and signed his promotion point work sheet certifying the points were correct, and that 71 of the 




points awarded were based on the fraudulent course completion certificates which the applicant knew were not authorized.  This document noted that the aforementioned alteration was discovered by a personnel clerk who noticed the documents had been altered during a reevaluation of the applicant’s promotion points.

An additional document indicates that the applicant was on a standing list for promotion to pay grade E-5 (Sergeant) in May 1990, that a recalculation of his promotion points was accomplished in November 1990, which raised his promotion point score, causing the applicant to be promoted to pay grade E-5.  A review of his promotion packet for promotion to pay grade E-6, revealed that without the points which he was awarded for the fraudulent correspondence courses he would not have been promoted to pay grade E-5.

On 16 July 1993 the applicant received nonjudicial punishment under Article 15, UCMJ for signing an official record, his promotion packet, with intent to deceive, knowing that that record contained falsely completed promotion points; and for willfully and unlawfully altering a public record, eight certificates of correspondence courses.  The applicant was reduced to pay grade E-4, ordered to forfeit $630.00 per month for two months, which was automatically suspended, and directed to perform 45 days of extra duty.  The applicant’s appeal of his punishment was denied on 4 August 1993.

On 20 August 1993 the applicant was barred from reenlisting.

On 2 September 1993 the applicant’s commanding officer initiated separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, for serious misconduct, making false official statements with intent to deceive the United States Army.




The applicant consulted with counsel, and stated that he understood the basis for the contemplated action against him, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights.  The applicant waived consideration of his case by an administrative separation board.  He stated that he understood the nature and consequences of the general discharge that he might receive.  He declined to submit a statement in his own behalf.

The applicant’s commanding officer recommended through command channels to the separation authority that the applicant be discharged and that he receive a general (under honorable conditions) discharge.  In the forwarding of this recommendation, the applicant’s commanding officer included a copy of the applicant’s personnel qualification record, indicating among other entries contained therein, the applicant’s record of assignments, to include his tour of duty in Saudi Arabia; his civilian and military education,  and his awards.

On 4 October 1993 the separation authority approved the recommendation.  The applicant was discharged on 
15 October 1993.  He had 10 years, 6 months, and 15 days of service.

Army Regulation 27-10 provides policy for the
administration of military justice.  Chapter 3 provides
that nonjudicial punishment is appropriate in all cases
involving minor offenses in which nonpunitive measures
are considered inadequate or inappropriate.  It is a
tool available to commanders to correct, educate and
reform offenders whom the commander determines cannot
benefit from less stringent measures; to preserve a
member's record of service from unnecessary stigma by
record of court-martial conviction; and to further
military efficiency by disposing of minor offenses in a
manner requiring fewer resources than trial by
court-martial.  The imposing commander is not bound by
the formal rules of evidence before courts-martial and
may consider any matter, including unsworn statements
the commander reasonably believed to be relevant to the
case.  Furthermore, whether to impose punishment and the
nature of the punishment are the sole decisions of the
imposing commander.


Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12c states that soldiers are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the MCM.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged for misconduct.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  As its name indicates, nonjudicial punishment is different from a trial by court-martial.  A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence.  Instead he chose to have the matter settled at nonjudicial punishment.

2.  The nonjudicial punishment was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.  If the applicant had demanded trial by court-martial he could have received a dishonorable discharge and confinement for five years if convicted of the offenses for which charged.


3.  The discharge proceedings were conducted in accordance with applicable law and regulations.  The applicant waived consideration of his case by an administrative separation board and acknowledged that he understood the effects of a general discharge.  The Board notes that officials in the applicant’s chain of command were fully aware of the applicant’s military record.   The character of the discharge is commensurate with the applicant's overall record of military service and was not unduly harsh.  Individuals separated under these provisions, i.e., misconduct, are not eligible for separation pay.  The Board notes that the applicant could have received a discharge under other than honorable conditions.

4.  The contentions of the applicant have been noted by the Board.  However, they are not supported by either evidence submitted with the application or the evidence of record.
The applicant has submitted neither probative evidence nor a convincing argument in support of his request. 

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.  (NOTE:  The applicant should be advised that he may apply to the Army Discharge Review Board for recharacterization of his discharge).



BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director