IN THE CASE OF:	  

		BOARD DATE:	19 November 2009

		DOCKET NUMBER:  AR20090009736 


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, in effect, upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD).

2.  The applicant states, in effect, that he served in the Army for more than 16 years and he did all he was asked to do.  He claims that in July 1991, a mix up of paperwork submitted to the finance office dealing with a permanent change of station (PCS) move resulted in double reimbursement requests being submitted. He claims he did not realize the error at the time and he was overpaid as a result of this mistake.  He states that as soon as he learned of the mistake, he repaid every penny immediately.  He claims he learned of the overpayment from the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) at Fort Gordon, GA.  He states that at that time, his PCS move to Korea had been stopped due to him hurting his arm and he worked with the doctors and was rehabilitated at Fort Gordon until he was physically able to return.  He claims that when he was informed by the CID of the overpayment, he was told to get an attorney and he had no idea of what was going on.

3.  The applicant further states that due to the overpayment, even with him immediately paying back the money, he was put out of the Army and he received a less-than-honorable discharge.  He claims he had 4 years remaining to be retirement eligible and he loved the Army and his many responsibilities and what he did for his country.  He indicates that he believes he was treated unfairly and the attorney he spoke with in the military felt the same way and commented that he had never seen that type of punishment for an honest mistake.

4.  The applicant claims he lost his job, his life, and his future and it has taken some time to get over the hurt he felt.  He indicates he lost his retirement and all of his benefits, and he has often said, “if only they would let him back in the Army.”  He claims he has worked out and kept in shape praying for that opportunity.  He indicates that he understands nothing much can be done about his retirement now, but he is begging for help in upgrading his discharge to an HD, which he feels he deserves.  He concludes by stating he would like to be able to look at his DD Form 214 (Certificate of Release or Discharge from Active Duty) and show his family that 16 years of his life were not dishonorable.

5.  The applicant provides a copy of his DD Form 214, an Army Discharge Review Board (ADRB) denial letter, and a Congressional Inquiry packet 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 he initially enlisted in the Regular Army (RA) on 3 January 1985, and that he held and served in military occupational specialty (MOS) 92G (Food Service Sergeant).  His record shows he was promoted to staff sergeant (SSG)/E-6 on 1 January 1994 and that this is the highest rank he attained while serving on active duty.

3.  On 9 July 2001, the CID completed an investigation on the applicant that was initiated on 7 February 2001, when an envelope was left at the CID office by an anonymous person, which contained information and documents that the applicant submitted a fraudulent travel voucher.  The CID investigation established probable cause to believe the applicant committed the offenses of false official statement, fraud, and larceny of government funds when he submitted a fraudulent travel voucher and received $3,022.49 for allegedly moving his family members to California.

4.  On 27 August 2001, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Article 107, Article 121 and Article 132 of the Uniform Code of Military Justice (UCMJ) as follows:  Article 107, by making a false official statement with the intent to deceive on or about 
7 February 2001;  Article 121 (2 Specifications), by stealing money from the    U.S. government valued at more than $100.00 between on or about between      1 September 2000 and 30 September 2000 and for stealing money from the   U.S. government valued at more than $100.00 between on or about 1 May 2001 and 1 July 2001; and Article 132 (2 Specifications) by presenting a false and fraudulent claim on or about 8 September 2000 and by presenting a false and fraudulent claim on or about 31 May 2001.  

5.  On 17 September 2001, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, of the possible effects of a UOTHC discharge if a request for discharge were approved, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.

6.  In his discharge request, the applicant confirmed he was making the discharge request of his own free will and that he had been advised of the implications attached to it.  He further acknowledged that he understood by requesting discharge, he understood the elements of the offenses charged and was guilty of at least one offense or of lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge. He further confirmed that under no circumstances did he desire further rehabilitation, because he had no desire to perform further military service.  He further acknowledged that he understood if his request for discharge were accepted, he could receive a UOTHC discharge, and that he understood the possible effects of this type of discharge which would result in his being deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both State and Federal law.  He further acknowledged that he understood he could expect to encounter substantial prejudice in civilian life as a result of receiving a UOTHC discharge.  The applicant elected to submit a statement in his own behalf with his discharge request.



7.  In the statement he included with his discharge request, the applicant outlined his record of service and asked that this be considered prior to any decision being made regarding his discharge request.  He further requested that his discharge be approved and that he be allowed to begin his life again without a federal conviction.  He also enclosed a check to repay his debt to the Army.

8.  On 14 April 2004, the ADRB after carefully considering the applicant's case, determined his discharge was proper and equitable and it voted to deny his request for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

10.  Paragraph 3-7a of the same regulation provides that an HD 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  Paragraph 3-7b provides that a GD 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UOTHC discharge should be upgraded to an HD because his offenses were the result of an honest mistake and based on his overall record of service was carefully considered.  However, there is insufficient evidence to support this claim.


2.  Notwithstanding his assertions that his discharge was the result of an honest mistake, the evidence of record confirms that a thorough investigation resulted in a determination that there was probable cause to believe the applicant committed the offenses of making a false official statement, fraud, and larceny of U.S. government funds.

3.  The evidence of record further confirms that the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and, after consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge, he admitted guilt to the charges against him or of a lesser included offense contained therein that also authorized the imposition of a bad conduct or a dishonorable discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The applicant voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance and given the gravity of his offenses, it would not be appropriate to upgrade his discharge at this late date.

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 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.



      _______ _   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)                                         AR20090009736



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009736



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1