IN THE CASE OF:	  

		BOARD DATE:	  27 May 2014

		DOCKET NUMBER:  AR20130016437 


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 her under than honorable conditions discharge to an honorable discharge.

2.  The applicant states:

	a.  Her discharge should be upgraded because she did not have the financial resources to obtain the services of an attorney, who would have dropped or reduced the charges after a proper investigation.  Her discharge was unjust because it was based on one isolated incident within 7 years and 9 months of service.

	b.  The discharge she received does not fully represent her true character.  It has been 15 years since her discharge and she has completed her bachelor's degree in business/information systems, been with the same employer for 14 years, and has been a model citizen.  She would like a second chance to serve her country starting at the community level and cannot accomplish this without a change in the characterization of service.

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty), a certificate, and two undated letters.

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 27 September 1990.  On 8 September 1995, she was assigned to the 557th Maintenance Company, Fort Irwin, CA.  On 1 August 1996, she was promoted to the rank/grade of sergeant (SGT)/E-5.  

3.  On 28 October 1997, a civilian sheriff was assigned to handle a fraud and theft by credit card case at Fort Irwin.  A Soldier had reported someone had stolen her military identification (ID) card, used it to open a Circuit City account and purchase computer equipment and other items, obtain a mail box at the Fort Irwin post office, and acquire a loan from a financial institution.  

4.  On 28 October 1997, the military police (MP) were notified of the allegations and the applicant was identified as the person who stole the ID card.  A search of her quarters turned up the items purchased from Circuit City.  A subsequent investigation found she had also opened the post office box and received the loan.

5.  On 30 January 1998, a Bar to Reenlistment Certificate was placed against her for larceny, forgery, making a false statement, and commission of a serious offense.

6.  On 12 March 1998, she was arrested and confined by civilian authorities on charges of grand theft and theft by misrepresentation.  She pled guilty and sentencing was set for 27 July 1998.  On 17 March 1998, she was returned to military control at Fort Irwin.

7.  On 14 April 1998, her immediate commander notified her of his intent to initiate separation action against her under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for the commission of a serious offense.  Specifically, he cited the applicant fraudulently used another Soldier's ID card, opened an account and received $800 in merchandise, secured a post office box in the name of the Soldier, received a $1,585 loan, and willingly and falsely impersonated the Soldier to steal money and property from her.

8.  On 14 April 1998, she acknowledged receipt of the commander's intent to separate her.  On 22 April 1998, she consulted with legal counsel and she was advised of the basis for the contemplated separation action, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to her.  She waived her right to have her case heard by an administrative separation board with the condition she be given a general discharge.  

9.  In a statement, dated 23 April 1998, she stated she realized she committed a serious offense but the incident happened when another noncommissioned officer (NCO) attempted to ruin her character.  She (the applicant) took matters into her own hand which resulted in her erroneous judgment.  She was sorry for the crime she had committed and for discrediting the NCO Corps.

10.  The approving authority subsequently disapproved her conditional waiver request and she was directed to appear before an administrative separation board.

11. On 26 May 1998, she again consulted with legal counsel and waived her right to have her case heard by an administrative separation board and accept the characterization of her service as under other than honorable conditions contingent upon her receiving an exception to policy to move her dependents and household goods back to her home of record. 

12.  On 5 June 1998, the separation authority approved the discharge action, directed the applicant be reduced to the lowest enlisted rank and that she be discharged with an under other than honorable conditions discharge.  On 2 July 1998, she was discharged accordingly.

13.  The DD Form 214 she was issued confirms she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense, with an under other than honorable conditions characterization of service.  She completed 7 years, 9 months, and 6 days of creditable active service with 5 days of lost time due to civil confinement.

14.  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 abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

15.  Army Regulation 635-200, paragraph 3-7a states 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.

16.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant, an NCO with 7 years of service at the time of her offenses, demonstrated she could not or would not meet acceptable standards required of enlisted personnel as evidenced by the crime she committed in stealing another Soldier's ID card, opening a post office box under a false name, and fraudulently obtaining over $2,400 in cash and merchandise in that Soldier's name.  Accordingly, her immediate commander initiated separation action against her.  

2.  Her separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case and the serious nature of her misconduct. 

3.  This misconduct also rendered her service unsatisfactory.  Therefore, she is not entitled to an honorable or a general 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)                                         AR20130016437





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ABCMR Record of Proceedings (cont)                                         AR20130016437



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