IN THE CASE OF:	  

		BOARD DATE:  2 January 2014

		DOCKET NUMBER:  AR20130007400 


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 an honorable discharge.

2.  The applicant states:

   a.  He believes his discharge is unjust due to impropriety.  Information used to support the misconduct claim was not substantiated as misconduct.  One of the supporting documents should not have been considered misconduct due to the nature of the event.  It is in the interest of justice to consider this application to restore a sense of pride that he can display to his children.  An upgrade also affords him the opportunity to use the GI Bill benefits.  Furthering his education will improve his ability to provide for his home and contribute to his community.

   b.  He served in the U.S. Army from 22 August 1991 to 17 August 1995.  His career was curtailed when he was discharged with a general discharge for a pattern of misconduct.  The claims that were not substantiated as misconduct were the conspiracy to defraud the government investigation and the failure to maintain control of a government vehicle accident.  The claim that did not warrant being characterized as misconduct was the failure to re-register a vehicle claim.  

   c.  Although he was not charged in the investigation, he was charged in his command’s court of personal opinion.  This is evident by the presence of the investigation to support a pattern of misconduct discharge.  He was not charged, disciplined, nor was he counseled for being a suspect.  The DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) submitted to support the misconduct claim was not completed or signed by the commander because it would not have been legal to do so considering that he was suspected and not convicted.

   d.  The investigation was never substantiated as misconduct; therefore, the investigation should not have been submitted to support a pattern of misconduct discharge.  The use of the investigation illustrated the command’s partial personal opinion, disregard of his rights to be innocent until proven guilty, and determination to punish him.

   e.  The failure to maintain control of a government vehicle was not substantiated as misconduct.  The nature of the accident was not due to willful disobedience or lack of self-discipline.  He did not receive disciplinary action, administrative action, or counseling.  The accident report should not have been included to support a pattern of misconduct discharge.  The presence of this accident report further illustrated the command’s partial personal opinion.

   f.  The failure to register his personally owned vehicle (POV) incident was based on failing to register his vehicle prior to the registration expiring.  This was an administrative oversight.  This should not have been characterized as misconduct because the nature of the incident was not willful disobedience or a lack of self-discipline.  He was not operating the vehicle with an expired registration.  The windshield of his POV was cracked and needed to be repaired prior to registering.  The process of having the insurance company pay for the damages prolonged repairs.  By the time he had the damages repaired, the registration had expired.  Upon receiving the letter of expiration, he immediately went to the vehicle registration office and registered his vehicle.

   g.  Although he exercised poor judgment which led to the Article 15 grade reduction, that judgment does not equate to the caliber of his service.  He took serving his country very seriously.  He worked hard to meet and exceed expectations in every aspect of his career.  He worked diligently to achieve goals and maintain standards set before him.  He was promoted promptly in recognition of his earnest service.  During the course of his service, he maintained a high level of physical fitness by always exceeding the standards of the physical training test.  He was awarded the Army Good Conduct Medal, Drivers Badge, and excelled on inspections in his area of responsibility.  He also attended the University of Maryland, taking courses in an effort to make himself more effective during his service.  Given the opportunity to transfer from under the partial opinions of his command, his service contributions would have been immense.

3.  The applicant provides:
* DA Form 2-1 (Personnel Qualification Record – Part II)
* 1993 Certificate of Achievement
* Drivers Badge orders
* 1994 Report of Investigation
* DA Form 4833 for Conspiracy to Defraud the U.S. Government
* DA Form 4833 for Failing to Re-Register Vehicle
* Educational Development Record
* 1994 General Purpose Checklist
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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, in pay grade E-1, on 22 August 1991.  He completed training and was awarded military occupational specialty 71L (Administrative Specialist).  He was promoted to pay grade E-4 on 1 February 1993.  He served in Germany from 8 January 1992 through 7 January 1995.  

3.  He provided copies of and his record contains the following:

   a.  A Certificate of Achievement, dated 22 March 1993, he received for distinguished service during the Battalion Command Post Exercise.
   
   b.  Permanent Orders 1-1 issued by Headquarters, 9th Military Police Battalion, on 3 January 1994, awarding him the Drivers Badge from 8 December 1992 through 8 December 1993.

   c.  Report of Investigation, dated 19 August 1994, which summarized an investigation of the charge of failing to maintain control/unauthorized use of a government vehicle.  The investigation concluded that he failed to adjust his speed for road conditions and therefore lost control of his vehicle as he entered the curve.

   d.  An undated DA Form 4833 which reported his offenses of conspiracy to defraud the U.S. Government and Larceny of Government Property between 13 September 1993 to 17 March 1994, on 21 March, and from 4 to 8 July 1994.  This form does not specify what type of action (Administrative, Nonjudicial (Article 15, Uniform Code of Military Justice (UCMJ), or Judicial (Summary, Special, or General Court-Martial, Civil Court) was taken and was not signed by the commanding officer.

   e.  A DA Form 4833, which reported his offense of failing to re-register his vehicle on 29 September 1994.  This form indicated that administrative action was taken and was signed by a commanding officer on 26 October 1994.

   f.  A General Purpose Checklist, dated 5 December 1994, used in the function area for promotions.

   g.  An Educational Development Record, dated 4 August 1995, which shows he had completed two college courses.

4.  On 17 October 1994, a U.S. Army Criminal Investigation Command (CID) report memorandum was forwarded to the applicant's command for information and action deemed appropriate pertaining to the applicant and another Soldier.  The report stated the investigation established probable cause to believe that the applicant and another Soldier committed the offense of conspiracy and larceny, when they conspired together and stole Army Air Force Exchange Services (AAFES) merchandise, then returned the items at different exchanges for a cash refund.  Total aggregated loss to the U.S. Government was $11,196.98.  

5.  A Report of Mental Status Evaluation, dated 3 April 1995, shows the applicant's behavior was found to be normal.  He was fully alert and fully oriented.  His mood or affect was unremarkable, his thinking process was clear, and his though content was normal.  His memory was good.  The examining physician stated the applicant had no psychiatric disease or defect which warranted disposition through medical channels.  He also stated that the applicant tended to act suspiciously when questioned, evaded or blamed others, and insight into his behaviors was very poor.  The applicant was defensive.  He determined the applicant was mentally responsible and had the mental capacity to participate in board proceedings.


6.  On 17 May 1995, he accepted non-judicial punishment under Article 15, UCMJ, for operating a passenger car while drunk on or about 1 April 1995.

7.  He also provided a copy of and his record contains a Matter of Mitigation for Chapter 14-12b memorandum, dated 22 May 1995, wherein the applicant stated:

   a.  Based on the realization of the chapter he was pending showed his chain of command did not believe he was a competent Soldier.  It was evident that the reason for this chapter was the investigation and not a pattern of misconduct.  None of the misconduct was serious enough for disciplinary action.  The investigation did not charge him, but his chain of command believed that he was guilty.  They felt that he needed to be punished regardless.  They were disregarding the law that stated U.S. citizens are innocent until proven guilty beyond a reasonable doubt.  He was not even receiving a fair trial.  He was presumed guilty prior to the conclusion of the investigation.  

   b.  He went to see his company commander through the open door policy to see what his views were in reference to this chapter.  The company commander told him that he couldn’t discuss his case.  His company commander stated that if the investigation came back proving him guilty he would be through, but if it didn’t prove him guilty he would continue his career and make the best of it.  Due to the personal opinion influenced by circumstantial evidence, his career had been placed in jeopardy.  He did not conspire to defraud the government or steal from the government (AAFES).

   c.  The traffic accident was his mistake, but he was human subject to human error.  Prior to that accident, he had driven military vehicles for approximately two and a half years without an accident or violation.  He received a Driver’s Badge for 12 consecutive months of accident free driving.  The first year he was overlooked.

   d.  Failing to register his POV was not intentional and he did not drive his POV after the registration’s expiration date.  He went over to the vehicle registration office the day after the registration had expired.  The windshield of his POV had recently been cracked.  The process of going through his insurance company to get the damages repaired took a while.  By the time he had the damages repaired on his POV it was the date of expiration.  His duties at work and official business called for his immediate attention.  He did not feel that his personal business had preference to government business.  He did not know that if he had applied for an extension, this charge could have been avoided.  He wasn’t counseled about the proper procedures.

   e.  Over the time that he had been in that unit he had done far more positive than negative.  He hadn’t made mistakes his entire career.  He received recognition through advancement and the lateral appointment.  After the lateral appointment, he was flagged.  Although he was flagged, he continued to excel by passing inspections commendably.  He wasn’t recognized with awards due to being flagged; therefore, he doesn’t have a lot of evidence of his excellent and dedicated work.  He was a professional Soldier and would like to continue his career serving in the U.S. Forces.

8.  On 11 July 1995, the applicant’s company commander notified the applicant of proposed action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), paragraph 14-12b, for a pattern of misconduct.  The company commander stated the reasons for the proposed action were the applicant's involvement with a conspiracy to defraud the U.S. Government and larceny of Government property, failing to maintain control of a Government vehicle while driving, failing to re-register his vehicle, and being punished under Article 15 for driving while drunk.  He advised the applicant of his rights and that he could receive a general or an honorable discharge.

9.  On 11 July 1995, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general discharge and the results of the receipt of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

10.  In July 1995, the applicant’s battalion commander recommended the applicant be separated under the provisions of Army Regulation 14-12b for a pattern of misconduct with a general discharge.

11.  On 26 July 1995, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge.

12.  He was discharged accordingly in pay grade E-3 on 17 August 1995, under the provisions of Army Regulation 635-200, paragraph 14-12b, for Misconduct.  He was credited with completing 3 years, 11 months, and 26 days of net active service.  His service was characterized as under honorable conditions (general). 

13.  His DD Form 214 lists the National Defense Service Medal, Army Service Ribbon, Marksman Marksmanship Badge, and Driver and Mechanic Badge with Mechanic Bar as authorized awards.

14.  There is no evidence the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.
15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  The regulation stated in:

   a.  Paragraph 14-12b – Soldiers are subject to discharge for a pattern of misconduct.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  An under other than honorable conditions discharge was normally appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

	b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was punished under Article 15 for driving while drunk and underwent an investigation for failing to maintain control/unauthorized use of a government vehicle.  The investigation concluded that he failed to adjust his speed for road conditions and therefore lost control of his vehicle as he entered the curve.  A CID investigation also established a probable cause to believe he committed the offense of conspiracy and larceny against the U.S. Government in a significant amount.  

2.  As a result his company commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct.  The separation authority approved his discharge and he was discharged accordingly on 17 August 1995.

3.  There is no evidence of record and he provided none to show he was innocent of the offenses.  Upon notification of his separation he acknowledged, after consulting with counsel, he understood the basis for the contemplated separation action and its effect and waived his rights.

4.  It appears that based on his overall record it was directed he receive a general discharge, as the characterization of service for this type of discharge was normally under other than honorable conditions.

5.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge and he has submitted neither probative evidence nor a convincing argument that shows his general discharge was inequitable and he now warrants a fully honorable discharge.  He was properly separated for a pattern of misconduct.

6.  His desire to have his dishonorable discharge upgraded so that he can qualify for education and/or other benefits administered by the Department of Veterans Affairs (VA) is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.

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)                                         AR20130007400





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ABCMR Record of Proceedings (cont)                                         AR20130007400



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