IN THE CASE OF:	  

		BOARD DATE:	  24 July 2012

		DOCKET NUMBER:  AR20120002407 


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 that his general discharge be upgraded to honorable and that the reason for separation be changed.

2.  The applicant states he was young and made a mistake.  He took responsibility for his actions and if "the noncommissioned officer" would have been doing his job and not had a personal hatred towards him and other support personnel he would still be in the Army.  He states that he is now working as a Department of Defense (DoD) employee and he is sharing the knowledge of his military occupational specialty (MOS) with other employees and contractors.  He states that he has also deployed to Iraq, Afghanistan, and Kuwait.  He adds that his disabilities are getting worse and he would like to clear his name and get the type of discharge that he believes he deserves for his Army service.  

3.  The applicant provides a DD Form 1614 (Request/Authorization for DoD Civilian Permanent Duty or Temporary Change of Station Travel) and two 
DD Forms 1610 (Request and Authorization for Temporary Duty Travel of DoD Personnel).

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 15 June 1999 and he was awarded MOS 63B (Light Wheel Vehicle Mechanic) upon completion of initial entry training.  On 25 October 2001, he reenlisted for a period of 4 years.  

3.  He accepted nonjudicial punishment on 11 March 2003 for violating a lawful regulation on diverse occasions by wrongfully using his Government travel card and for two specifications of making a false official statement with the intent to deceive.  

4.  A U.S. Army Criminal Investigation Command (USACIDC) report indicates that the applicant was charged by civilian authorities with conspiracy to commit fraud.  The report further indicates that he was apprehended and incarcerated by civilian authorities in May 2003.  It appears the applicant filed a claim with Farmers Insurance Group alleging that his 2001 Mitsubishi Eclipse had been stolen.  His claim was settled; later the vehicle was recovered by the police.  The applicant picked up the vehicle and did not notify the insurance company.  The vehicle was later discovered abandoned in a partially-stripped condition.  The applicant's Government quarters were searched by USACIDC and the Richland County Sheriff's Office and various parts of the Mitsubishi were found.  

5.  In May 2003, the applicant's immediate commander advised the applicant of his intent to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct-commission of a serious offense, with a general discharge.  The commander cited the reasons for the proposed separation action were the applicant's arrest for insurance fraud, his nonjudicial punishment for misuse of a Government travel card, and for making false official statements with regard to the investigation into the wrongful use of a Government travel card.  He was also advised of his right to:

* consult with legal counsel 
* submit statements in his own behalf
* waive his rights in writing


6.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for commission of a serious offense.  He elected not to submit statements in his own behalf.  He acknowledged he understood he may expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him.  He acknowledged he understood that if he received a character of service of less than honorable, he may apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded.

7.  The applicant's immediate commander recommended separation action against him in accordance with chapter 14-12c, Army Regulation 635-200, for misconduct with a general discharge.

8.  The appropriate separation authority approved the recommendation for separation under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a General Discharge Certificate.  On 18 July 2003, he was discharged accordingly.  Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "Misconduct."

9.  The ADRB denied his request for a discharge upgrade on 2 July 2008.

10.  He provided a DD Form 1614 and two DD Forms 1610 which indicate that as of November 2011, he was a U.S. Government employee and was scheduled to travel to Kuwait.

11.  Army Regulation 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 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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a discharge upgrade and a change of his narrative reason for separation has been carefully considered.

2.  His record of indiscipline includes nonjudicial punishment for violating a lawful regulation on divers occasions by wrongfully using his Government travel card, two specifications of making a false official statement with the intent to deceive, and insurance fraud charges by civilian authorities.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an honorable discharge. 

3.  The available evidence also confirms his separation processing for misconduct was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The type of discharge directed and the narrative reason for his separation therefore were appropriate considering all the facts of the case.

4.  His post-service employment status was noted.  However, it does not sufficiently mitigate his acts of indiscipline during his military service.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120002407



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ABCMR Record of Proceedings (cont)                                         AR20120002407



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