RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 April 2008 
	DOCKET NUMBER:  AR20070018714 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


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	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).   

2.  The applicant states, in effect, that his discharge was for issues associated with recruiting.  He states that he was accused of having removed medical information from a recruit's records, an offense he claims was committed not by him but by his station commander, who blamed it on him.  He states his station commander is now terminally ill and wants to make amends for things he has done, and other members of the station also have been contacted and would like to make statements regarding the actions of his station commander.  The applicant further states that he is not physically able to reenlist due to numerous surgeries and medical conditions, and would like his named cleared before he passes.  He states that he has had a great career in law enforcement and has raised wonderful children, one of which is a doctor and one a nurse.  He requests that this matter now be cleared up.  

3.  The applicant provides a self-authored statement, numerous training certificates and memorandums related to his civilian employment, and a copy of his separation document (DD Form 214) in support of his application.  

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's record shows that he enlisted in the Regular Army and entered active duty on 8 June 1977.  He was initially trained in and awarded military occupational specialty (MOS) 19D (Cavalry Scout) and was later trained in and awarded MOS 54E (Chemical Operations Specialist).  

3.  The applicant's record shows that during his active duty tenure, he earned the following awards:  Army Service Ribbon; Army Achievement Medal (5th Award); Army Good Conduct Medal (4th Award); Overseas Service Ribbon; Noncommissioned Officer Professional Development Ribbon with Numeral 3; Meritorious Service Medal; Master Parachutist Badge; Australian Parachutist Badge; Thai Parachutist Badge; Army Recruiter Badge; Special Forces Tab; Army Commendation Medal (4th Award); and Thai Parachutist Badge with
Red Fourragere.  

4.  The applicant's record shows that he was assigned to recruiting duty in Omaha, Nebraska, and arrived there for duty on 19 September 1988.   

5.  On 28 August 1989, the applicant received a General Officer Memorandum of of Reprimand (GOMOR) from the Commanding General (CG) of the United States Army Recruiting Command (USAREC) for committing recruiting impropriety by wrongfully advising a potential recruit to conceal that fact that he had suffered two separate head injuries, a potentially disqualifying medical condition.  

6.  On 20 September 1989, the applicant acknowledged that he had read and understood the unfavorable information presented against him and he elected not to make a statement.  

7.  On 2 October 1989, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully making a false official statement under oath; for willfully and unlawfully altering a public record; and for introducing a women as his wife with the intent to defraud the United States Government.  His punishment for these offenses was a forfeiture of $807.00 per month for 2 months ($607.00 of which was suspended).  

8.  On 5 October 1989, his commander notified the applicant of his intent to initiate separation action on him under the provisions of Chapter 14, Army Regulation 635-200, by reason of misconduct.  The commander cited his reasons for taking the action were the applicant's gross financial mismanagement, substantiated recruiter impropriety, false swearing, false statements, wrongful possession of an unauthorized and false identification card with intent to deceive, and altering a public record.  


9.  On 10 October 1989, the CG, USAREC, after reviewing the recommendations of the chain of command and the applicant's acknowledgement, directed that the GOMOR he issued to the applicant on 28 August 1989, be filed in the applicant's Official Military Personnel File (OMPF).  

10.  On 20 October 1989, the applicant consulted with legal counsel.  After being advised of the basis for the contemplated separation action, the rights available to him, and the effect of a waiver of those rights, the applicant initially requested consideration of his case by and personal appearance before an administrative separation board.  

11.  On 21 December 1989, the applicant again consulted with counsel and after having again been advised of the basis for the contemplated separation action, the rights available to him, and of the effect of a waiver of those rights, the applicant elected to waive his right to consideration of his case by an administrative separation board contingent on his receiving no less than a GD.  

12.  On 8 January 1990, the separation authority approved the applicant's conditional waiver and directed the applicant be discharged under the provisions of Chapter 14, Army Regulation 635-200, by reason of misconduct, and that he receive a GD.  On 15 February 1990, the applicant was discharged accordingly.  

13.  The DD Form 214 issued to the applicant upon his discharge on 15 February 1990, shows he held the rank of sergeant first class (SFC) and that he had completed a total of 12 years, 8 months, and 8 days of active military service.  

14.  On 1 October 1993, after carefully reviewing the applicant's entire record and the issues and evidence he presented, the Army Discharge Review Board (ADRB) determined the applicant's discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge.  

15.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  The regulation states, in pertinent part, that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An Under Other Than Honorable Conditions (UOTHC) discharge is normally considered appropriate for members separated under this chapter.  However, the separation authority may award a GD or HD if warranted by the member's overall record of service.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because it was based on recruiting improprieties that were committed by his station commander was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant accepted an Article 15 for several offenses related to his falsely presenting himself as married in order to wrongfully obtain Government services.  The record further shows that he accepted the GOMOR issued by the GG, USAREC for recruiting improprieties and elected not to submit a statement in rebuttal.  As a result, it appears there was more than sufficient cause for his commander to process him for separation for misconduct.  

3.  The evidence of record further confirms that the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the record confirms the applicant was discharged in accordance with the terms of his own conditional waiver and elected not to present his case before an administrative separation board.  

4.  By regulation, an UOTHC discharge is normally considered appropriate for members separated for misconduct.  However, the separation authority may issue a GD or HD if warranted by the members overall record of service.  In this case, the separation authority determined a GD would be appropriate based on the applicant's overall record of service.  However, the applicant's misconduct clearly diminished the overall quality of his service below that meriting a fully honorable discharge and did not support the issue of an HD at the time of his discharge, and does not support an upgrade of his discharge at this time.  

5.  The applicant's good post-service conduct was also considered; however, given the misconduct of the applicant, this factor alone is not sufficiently mitigating to support granting the requested relief.  

6.  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 this requirement.


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.




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          CHAIRPERSON