IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100015243 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to upgrade his general discharge under honorable conditions to an honorable discharge.

2.  He states he was not the recruiter of record.  He claims to have interviewed the prospective recruit only once before determining his ineligibility and further documenting his findings.  He contends he referred and escorted the recruit to the station commander as requested.

3.  Several months later, he was assigned as a station commander of a different recruiting station due to the inactivation of the station to which he was previously assigned.  He found out that the recruit he had previously determined to be ineligible for enlistment had been enlisted into the Army without the proper education.

4.  He states he has endured this injustice for 17 years.  He has a 17-year old son who he has encouraged to join the military despite the injustice which was done to him.

5.  He did not provide any additional documentation in support of his request.

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.  His record shows that after having 12 days of prior inactive service in the U.S. Army Reserve Delayed Entry Program, the applicant enlisted in the Regular Army on 6 October 1981.  After completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 19D (Cavalry Scout).  He subsequently executed a series of extensions and/or reenlistments in the Army.

3.  A copy of his DA Form 2-1 (Personnel Qualification Record – Part II) shows in item 18 (Appointments and Reductions) that he was promoted to the rank of staff sergeant on 6 November 1986.  Item 35 (Record of Assignments) shows he was detailed as an Army Recruiter on 7 May 1990 and was assigned to the U.S. Army Recruiting Command with duty at the San Francisco Recruiting Battalion.

4.  His record contains a copy of a Report of Investigation (ROI), Headquarters, U.S. Army 6th Recruiting Brigade, dated 6 October 1992.  The findings of the ROI noted, in pertinent part, that sufficient evidence existed to show the applicant assisted in fraudulently enlisting Soldiers into the Army.  He was recommended to be relieved from his recruiting duties and to be processed for administrative separation under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

5.  On 3 March 1993, he was recommended for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  The commander noted the reasons for his actions were due to the applicant committing recruiting improprieties by assisting in the fraudulent enlistment of three recruits.

6.  On 10 March 1993, he consulted with counsel in regard to separation under the provisions of Army Regulation 635-200, paragraph 14-12c, and requested to have his case considered by an administrative separation board.   He elected not to submit a statement.

7.  His records show that on 23 March 1993 he was given a mental status evaluation which indicated he showed no sign of mental illness, was mentally responsible and able to distinguish right from wrong, and had the mental capacity to understand and participate in board proceedings.

8.  On 21 June 1993, an investigation was conducted under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers).  The specific findings noted by a preponderance of the evidence that the applicant committed recruiting improprieties by assisting in the fraudulent enlistment of three Soldiers into the U.S. Army.

9.  The investigation specifically found he had advised a fellow recruiter to keep the issue of a fake high school diploma between themselves and he then signed the certification portion of the recruit's DD Form 1966 (Record of Military Processing – Armed Forces of the United States) without verifying the recruit's educational status.  He also allegedly told another recruit he could get him a fake high school diploma, too.  The board recommended that he be separated from the Army and that he be issued an Under Honorable Conditions Discharge Certificate.

10.  On 29 October 1993, his administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c, was reviewed by a legal advisor for administrative correctness.  The legal advisor noted the board's recommendation for separation with a general discharge under honorable conditions was commensurate with the applicant's entire military record.

11.  Accordingly, the separation authority directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, and be furnished an Under Honorable Conditions Discharge Certificate.

12.  The applicant's DD Form 214 shows he was discharged on 22 December 1993 under the provisions of paragraph 14-12c of Army Regulation 635-200 for misconduct and was issued an Under Honorable Conditions Discharge Certificate.  He had 12 years, 2 months, and 17 days of total active service with no lost time.  His awards include the following:

* Army Service Ribbon
* National Defense Service Medal
* Overseas Service Ribbon (Numeral 2)
* Noncommissioned Officer Professional Development Ribbon (Numeral 2)
* Army Commendation Medal
* Army Achievement Medal (4th Oak Leaf Cluster)


* Army Good Conduct Medal (4th Award)
* Expert Marksmanship Qualification Badge with Rifle Bar (M16)

13.  There is no evidence to show the applicant applied to the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

15.  Army Regulation 635-200, paragraph 3-7a, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, it is apparent the type of discharge he received was based on his overall performance during his period of military service.  The fact he was given an Under Honorable Conditions Discharge Certificate suggests that the separation authority likely considered the applicant's entire military record.

2.  His contention regarding the injustice he has suffered for 17 years was also considered; however, he has not provided sufficient evidence and his contention alone is not a basis for upgrading his discharge.

3.  The evidence of record confirms his discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.  He was properly discharged and he has not shown otherwise.

4.  In view of the foregoing, there is no basis for granting his request.

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 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)                                         AR20100015243



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ABCMR Record of Proceedings (cont)                                         AR20100015243



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