IN THE CASE OF:	

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090014729 


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 an upgrade of his general discharge to honorable. 

2.  The applicant states, in effect, that regulatory guidance was not properly followed during the processing of his separation from the U.S. Army.  He states he was processed out of the Army 10 days past his expiration of his term of service (ETS) date and after he had received retirement orders following 19 years, 10 months, and 24 days of service.  He also states his rights under the due process clause were violated during the separation process.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 14 June 2002 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 enlisted in the Regular Army on 10 August 1982 for a 3-year period of service.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 45T (Bradley Fighting Vehicle System Turret Mechanic).  He reenlisted upon each ETS with his most current reenlistment date being 16 June 1997 showing he reenlisted for 5 years which established his ETS date as 15 June 2002.  The highest rank he attained was staff sergeant/pay grade E-6.

3.  On 16 June 1997, in conjunction with his reenlistment, the applicant was assigned to U.S. Army Recruiting Command (USAREC) as a field military recruiter with duty in Oklahoma City, OK, at a Recruiting Station.

4.  On 26 October 1999, the applicant accepted field-grade nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violating a lawful general order, to wit:  USAREC Regulation 601-45 (Recruiting Improprieties Policies and Procedures) by wrongfully providing a high school diploma to a recruit applicant in an effort to effect an enlistment and by wrongfully pre-signing a Military Entrance Processing Command Form 714E (Request for Examination).  The commander imposing the punishment directed that the Article 15 be filed in the applicant's performance fiche of his official military personnel file (OMPF).

5.  On 27 October 1999, the applicant received a letter of reprimand from his battalion commander for pre-signing a Request for Examination.  The commander stated he did not determine guilt beyond a reasonable doubt for the evidence the applicant provided during the Article 15 proceedings cast doubt on the credibility of the witnesses alleging that he provided an imposter or "ringer" and a false high school diploma.  However, the applicant's conduct was questionable and had damaged the reputation of the Army recruiting program.  The commander directed that the letter of reprimand was to be filed in the applicant's battalion personnel file until he departed the unit.

6.  On 31 August 2000, the applicant received a DA-imposed bar to reenlistment under the Qualitative Management Program (QMP) based on the findings of the Calendar Year 2000 Sergeant First Class Promotion Board.  The applicant appealed this decision and requested that he be retained on active duty.

7.  The applicant's complete separation packet under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), is not available for the Board to review.  The evidence of record, as presented, is from the Army Discharge Review Board (ADRB) administrative analysis of the applicant's discharge that was based on a separation packet made available to the ADRB.

8.  On 7 December 2000, the applicant's commander notified him that he was initiating action to discharge him under the provisions of chapter 14 of Army Regulation 635-200 due to his commission of a serious offense that was punishable under the UCMJ which rendered him unsuitable for continued military service.  The commander recommended separation with a general discharge.

9.  The company commander advised the applicant of his right to submit statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting his proposed separation, and to consult with military or civilian counsel at no expense to the government within a reasonable time period.  The commander further advised the applicant that he could waive any of these rights in writing and that he could withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.

10.  On 12 December 2000, the applicant consulted with legal counsel and he was advised of his contemplated separation.  He was advised that he could receive a general under honorable conditions discharge.  The applicant did not submit a statement on his own behalf at that time, but he did indicate that he wanted his separation case considered by an administrative separation board.

11.  The applicant indicated that he understood that he could encounter substantial prejudice in civilian life with a general discharge.  He further indicated he understood that his separation under honorable conditions could deprive him of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a Veteran under both Federal and State laws.

12.  The applicant's company and intermediate commanders recommended him for discharge due to misconduct - commission of a serious offense and recommended a general characterization of service.

13.  On 5 February 2001, the applicant's case was referred to an administrative separation board.

14.  On 13 February 2001, the applicant acknowledged receipt of the notification to appear before an administrative separation board scheduled for 22 February 2001.  The applicant's senior defense counsel requested a delay in the proceedings, which was approved.

15.  On 9 April 2001, the DA Standby Advisory Board (DASAB) denied the applicant's appeal of continued active duty service under the QMP.  The DASAB determined that the applicant's past performance and his estimated potential were not in keeping with the standards expected of a member of the noncommissioned officer corps.

16.  On 17 April 2001, the applicant was present with his defense counsel when the administrative separation board met.  The board recommended separation with a characterization of service of under honorable conditions.

17.  On 7 May 2001, the appropriate legal authority concurred with the administrative separation board's findings and recommendations with no legal objections to further processing.  The board file was forwarded to DA which retained separation approval authority as the applicant had over 18 years of active Federal service.  The general court martial convening authority recommended approval of the separation board's findings and recommendations.

18.  On 4 June 2002, the Assistant Secretary of the Army for Manpower and Reserve Affairs reviewed and approved the separation action directing a characterization of service under honorable conditions.

19.  Following the Assistant Secretary of the Army for Manpower and Reserve Affairs’ decision, Orders 158-0100 were issued by Headquarters, U.S. Army Medical Department Center and School and Fort Sam Houston, TX, on 7 June 2002 directing that the applicant be discharged on 14 June 2002, 1 day prior to his ETS date.

20.  On 14 June 2002, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 for misconduct - commission of a serious offense.  He had completed 19 years, 10 months, and 5 days of net active service that was characterized as under honorable conditions.  Item 21 (Signature of Member Being Separated) shows the applicant signed and dated his DD Form 214 on 24 June 2002 which was 10 days past his ETS date.

21.  The applicant applied to the ADRB requesting an upgrade of his general discharge to fully honorable and also requesting his reason for discharge be changed to a more favorable reason.  The ADRB denied the applicant's request to upgrade his discharge and change his reason for discharge on 23 February 2005 stating the applicant's discharge was proper and equitable.

22.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Retention of Soldiers beyond their ETS to process administrative separation proceedings pursuant to this regulation is not authorized.  Soldiers who do not conform to required standards of discipline and performance and Soldiers who do not demonstrate potential for further military service should be separated before their ETS.  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.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

23.  Army Regulation 635-200 provides that an honorable discharge 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

24.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  The regulation states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The Soldier's signature indicates that he has reviewed the form and accepts the information as correct to the best of his knowledge.  The Soldier's separation date is the date the Soldier transitions from active duty and may not be the contractual date if the Soldier is separated early, voluntarily extends or is extended for makeup of lost time, or retained on active duty for the convenience of the government.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant, who had more than 18 years of active Federal service, was recommended for separation prior to the expiration of his term of service because he falsified completion of high school documents for potential Army recruits.  He also solicited, by appearance, the support of individual(s) to take aptitude tests for potential recruits.

2.  The applicant's pattern of misconduct when he was an Army recruiter is not in keeping with the acceptable standards of conduct for noncommissioned officers.  As such, he was barred from reenlistment under the Army's QMP.  He appealed this DA decision and his appeal was denied.

3.  The applicant contends that he did not receive due process, that his rights were violated, and that he was held 10 days beyond his ETS.  The evidence shows that the applicant was equitably and properly discharged in accordance with regulations in effect at the time to include a hearing by an administrative separation board with counsel present.  As the applicant had more than 18 years of active Federal service, the separation authority was the Assistant Secretary of the Army for Manpower and Reserve Affairs.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  The applicant contends he was in receipt of retirement orders.  However, there is no evidence to show that the applicant was in receipt of retirement orders as he contends.

5.  The separation authority's decision was rendered on 4 June 2002 and appropriate orders were published that show the applicant was separated 1 day prior to his ETS date.  While the applicant's DD Form 214 shows a date beyond his ETS date adjacent to his signature, the separation date shown on this form is 14 June 2002.  In fact, per regulatory guidance the applicant's signature on his separation documents attests to his acknowledgement that the information on the DD Form 214 was correct.  Therefore, the applicant's statement that he was held on active duty beyond his ETS is without merit and is not supported by the evidence.

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 that requirement.

7.  Based on all of the foregoing, there is insufficient basis to upgrade the applicant's discharge.



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)                                         AR20090014729



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ABCMR Record of Proceedings (cont)                                         AR20090014729



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