IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20110024142 


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) as follows:

* Item 24 (Character of Service) from "Under Other Than Honorable Conditions" to "Honorable" or "General"
* Item 26 (Separation Code) from "JKB" to an appropriate code
* Item 28 (Narrative Reason for Separation) from "Misconduct (Civil Conviction)" to "Convenience of the Government"

2.  The applicant states:

* Prior to his service in Korea, he took out a loan to spend and improve his credit rating and arranged for automatic deductions from his paycheck
* His commander was notified by the bank that payments were not being made; so, he attempted to rectify the situation 
* His commander ultimately threatened to suspended his clearance if he did not make payment arrangements
* He felt hopeless and desperate; he became panicked and agitated 
* In his state of panic and impaired judgment, he counterfeited approximately $1,200 of U.S. currency and 200,000 Korean Won using a computer 
* He used some of this money for a taxi fare and other purchases to calm his nerves
* He permitted officials of the U.S. Army Criminal Investigation Command 
(USACIDC, also known as CID) to search his property and fully admitted what he had done wrong
* He was taken into custody and placed in international hold; he was also charged with counterfeiting currency
* He was tried in a Korean court and sentenced to 2 years and 6 months of imprisonment - suspended for 4 years
* As a result of his conviction, his commander initiated separation action against him
* He requested a conditional waiver of his administrative separation board but his request was denied
* He did not completely understand what his military counsel advised him with respect to the administrative separation board, the least favorable character of service, and the conditional waiver
* He feels that if he had taken the administrative separation board, he would have had the opportunity to express remorse and could have received a different character of service
* Nevertheless, since his discharge, he has been working in a number of veterans' support activities
* In summary, he regrets his youthful error and requests the Board consider his case in a personal appearance hearing

3.  The applicant provides:

* Letter from his Member of Congress
* Army Discharge Review Board (ADRB) Case Report and Directives, dated 20 February 2009 and 11 August 2010
* Letter from the National Personnel Records Center
* Separation orders and amendments
* DD Form 2366 (Montgomery GI Bill Act of 1984 (MGIB))
* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) and allied documents, including Dep-In and Dep-Out
* DD Form 2808 (Report of Medical Examination)
* DD Form 214 and DD Form 215 (Correction to DD Form 214)
* DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members)
* DD Form 93 (Record of Emergency Data)
* SGLV Form 8286(E) (Service Member's Group Life Insurance Election and Certificate)
* Enlisted Record Brief
* Separation packet with allied documents, including notification and acknowledgement letter, request for conditional waiver, and approval memorandum
* Civilian conviction judgment (in Korean and English)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's discharge and correction of the narrative reason for separation and corresponding separation code.

2.  Counsel states the applicant's discharge was erroneous and unjust because the Army failed to give him a hearing before an administrative separation board, as was his right under the governing regulation.  Specifically counsel argues:

* The applicant's discharge was arbitrary, capricious, and contrary to law, regulation, or procedures of a substantive nature by which the applicant had been seriously prejudiced and harmed
* The Army's failure to hold a separation hearing was a fundamental error not susceptible to later review under the harmless error test
* The ADRB improperly found the Army’s failure to provide a hearing was "harmless error" and did not prejudice applicant 
* Applicant did not unconditionally waive his right to a hearing and accepting his conditional waiver for an other than honorable discharge was a harmful error  
* His discharge was inequitable as it was based on conviction for one activity which resulted from a youthful error arising from a panicked situation; the applicant confessed, expressed remorse, and repaid many of the persons who were damaged to the extent he was able to locate them 
* His appointed counsel did not review the affidavit he submitted in support of the first conditional waiver request

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 27 April 1985 and enlisted in the Regular Army at 19 years and 7 months of age on 4 November 2004.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 25F (Network Switch Systems Operator/
Maintainer).  He was assigned to Company C, 304th Signal Battalion, Korea.

2.  An investigation by CID agents revealed the applicant created counterfeit U.S. Dollars and Korean Won on or about 5 April 2006 and that he defrauded various establishments throughout Uijeongbu and Itaewon between 5 and 30 April 2006.

3.  On 1 September 2006, the applicant was convicted by a civilian court of the charges of counterfeiting currency and foreign currency, using counterfeited currency and foreign currency, committing fraud, and attempted fraud.  The court sentenced him to imprisonment for 2 years and 6 months and a fine of 60,000 Won and $120 U.S.  

4.  On 14 December 2006, the court suspended his sentence of imprisonment for 2 year and 6 months for 4 years. 

5.  On 8 February 2007, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-9 of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), by reason of conviction by a foreign tribunal.  The specific reasons for the separation action were the creating of counterfeit U.S. Dollars and Korean Won and defrauding several local nationals through the use of counterfeit currency.  The immediate commander recommended an under other than honorable conditions discharge.  

6.  On 8 February 2007, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently (13 February 2007) consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board and personal appearance before an administrative separation board contingent upon receiving a discharge characterization of service no less favorable than a general, under honorable conditions.  He also indicated he understood that "If I am not being considered for an other than honorable conditions discharge and/or I do not have more than 6 years of service, then I am not entitled to a separation board."  

7.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

8.  He elected to submit a statement in his own behalf.  He stated that he was in some financial trouble that he was unable to resolve, and as such, he freaked out.  He does not blame the military for chaptering him out. 

9.  On 21 February 2007, and subsequent to the applicant's acknowledgement and consult with counsel, his immediate commander recommended separation action against him in accordance with chapter 14 of AR 635-200, for misconduct - conviction by foreign court.  The immediate commander recommended an under other than honorable conditions discharge.

10.  On 22 February 2007, the applicant's intermediate commander recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions discharge.  

11.  On 28 February 2007, the applicant's senior commander reviewed the separation packet and he also recommended approval with the issuance of an under other than honorable conditions discharge.  He opined that the applicant's actions show a complete lack of responsibility, discipline, initiative, and maturity needed to become an effective Soldier.  

12.  On 9 March 2007, a Staff Judge Advocate reviewed the separation packet and conditional waiver for legal sufficiency.  He restated the events that led to the discharge action and presented the separation authority with the following recommendations: 

* Disapprove the conditional waiver request
* Refer the matter to an administrative separation board

13.  On 9 March 2007, the separation authority approved the recommendation of the Staff Judge Advocate concerning the administrative separation board.

14.  On 9 March 2007, the separation authority ordered an administrative separation board convene to determine if the applicant should be retained or separated.  

15.  On 24 March 2007, trial counsel wrote a memorandum of record wherein he stated that after considering the conditional waiver and consulting with co-trial counsel, the applicant's company, battalion, and brigade commanders recommend approval of the waiver and the applicant be separated with an under other than honorable conditions discharge.

16.  On 28 March 2007, the applicant submitted a second request for conditional waiver to the separation authority.  He indicated that he had been counseled on the basis of the contemplated separation action due to his court conviction, of the rights available to him, and the effect of any action taken by him in waiving his rights.  He also indicated he was advised that his commander was recommending an under other than honorable conditions character of service.  He voluntarily waived consideration of his case by an administrative separation board contingent upon his receiving a characterization of his service or description of separation no less favorable than an Other Than Honorable Conditions Discharge.  He acknowledged that he may expect to receive substantial prejudice in civilian life if he receives an Other Than Honorable Conditions Discharge.  Essentially, the second waiver indicated that the applicant sought to avoid any possible delay in his discharge resulting from the administrative separation board.

17.  On 30 March 2007, a Staff Judge Advocate reviewed the separation packet for legal sufficiency.  He restated the events that led to the discharge action and presented the separation authority with a recommendation.

18.  On 30 March 2007, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 14, by reason of misconduct - conviction by civil court and directed his service be characterized as under other than honorable conditions.   Accordingly, the applicant was discharged on 14 April 2007.

19.  The DD Form 214 he was issued confirms he was discharged under the provisions of paragraph 14-9 of AR 635-200 with a character of service of under other than honorable conditions by reason of misconduct - civil conviction.  This form further confirms he completed 2 years, 5 months, and 11 days of creditable active service.  This form shows in:

* Item 24 - Under Other Than Honorable Conditions Discharge
* Item 26 - JKB
* Item 28 - Misconduct (Civil Conviction) 

20.  On 20 February 2009, the ADRB determined the applicant was properly and equitably discharged.  Accordingly, it denied his request for a change in the character and/or the reason for his discharge.

21.  On 11 August 2010, the ADRB again determined the applicant was properly and equitably discharged.  Accordingly, his request for a change to his discharge was denied.

22.  AR 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.  Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states that a general discharge 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.  

23.  AR 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKB" SPD code is the correct code for Soldiers separating under paragraph 14-9 of AR 635-200 by reason of misconduct - civil conviction. 

24.  AR 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence confirms the applicant was convicted by a Korean court for creating counterfeit U.S. and foreign currency and defrauding and attempting to defraud several Korean establishments or individuals.  

2.  Accordingly, his chain of command initiated separation action against him.  The separation authority approved the recommendation for discharge and he was ultimately discharged under AR 635-200, chapter 14, with an under other than honorable conditions discharge.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  
3.  The evidence of record shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

4.  His narrative reason for separation was assigned based on his discharge under the provisions of chapter 14 of AR 635-200 due to misconduct for civil conviction.  Absent the conviction for counterfeiting, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his civil conviction.  The only valid narrative reason for separation permitted under that paragraph is "misconduct – civil conviction" and the appropriate SPD code associated with this discharge is "JKB" which are correctly shown on his DD Form 214.

5.  With respect to his/counsel's arguments:

	a.  The applicant was 19 years and 7 months of age at the time of his enlistment and over 21 years of age at the time he was convicted.  However, there is no evidence that his conviction was a result of his age or that he was any less mature than other Soldiers of the same age who successfully completed their service.

	b.  Contrary to his argument that had he taken the administrative separation board he would have had the opportunity to express remorse and could have received a different character of service, the evidence of record shows he was presented with the option of an administrative separation board and the separation authority approved one for him.  However, he made a subsequent election to waive such board. 

	c.  Counsel argues the applicant's discharge was arbitrary and capricious because he was denied the right to submit his case before an administrative discharge board.  In the applicant's case, his conviction was conducted by a court of law.  His separation packet was processed in accordance with AR 635-200.  His chain of command made recommendations and the Staff Judge Advocate reviewed it for legal sufficiency.  He was counseled of his rights by detailed defense counsel.  AR 635-200 requires a written document signed by the Soldier and his counsel if the Soldier chooses to waive rights.  He did this twice.  The first time was contingent upon receipt of a general discharge.  The second waiver was tantamount to an unconditional waiver and the format used was chosen by the applicant and his counsel.  He now argues that the format he and his counsel chose to use prevented the Army from accepting the second waiver.  This argument elevates form over substance.  While the ADRB may have appeared to accept this argument, in fact, his second waiver request was in essence an unconditional waiver.  The process concluded with his separation.  

	d.  Counsel argues that the Army committed harmful error by failing to provide an administrative discharge board.  Contrary to counsel's argument, the applicant's chain of command did not fail to provide the applicant with an administrative separation board.  He was given that option and the separation authority approved such option.  However, he made a voluntary election to waive this right by what amounted to an unconditional waiver.  The waiver was in writing, enumerated the rights being waived, and was signed by him and his counsel. 

	e.  Contrary to counsel's argument that the discharge was inequitable because it was based on conviction for one activity which resulted from a youthful error arising from a panicked situation, the applicant committed a serious offense that not only discredited himself but also discredited other Soldiers and the Army. 

	f.  The main issue here is the fact that the applicant created counterfeit currency and defrauded others for personal gain.  By his misconduct, the applicant diminished the quality of his service.  The quality of service will be determined according to standards of acceptable personal conduct and performance of duty for military personnel.  The quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline. 

	g.  Finally, his request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before this Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

6.  Based on the foregoing evidence, the applicant is not entitled to the requested relief.







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)                                         AR20110024142



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ABCMR Record of Proceedings (cont)                                         AR20110024142



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