IN THE CASE OF:	  

		BOARD DATE:	  26 August 2014

		DOCKET NUMBER:  AR20140000550 


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 the following:

* an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable or a general discharge
* change his reenlistment (RE) code to "1" or "2" to allow for reenlistment

2.  The applicant states his UOTHC discharge was disproportionately harsh 
vis-à-vis his civilian conviction.  The underlying civilian conviction has since been expunged, leaving him with no criminal record of any kind.  He wishes to move on with his life in a positive fashion.  His UOTHC discharge is a major impediment in doing so.  His record was expunged in late 2012 just over 3 years after the Army Discharge Review Board (ADRB) reviewed his case.  The expungement is new information for consideration, along with his counsel's comments.

3.  The applicant provides copies of the following:

* 2007 and 2008 Virginian Court Case Information forms
* Agent's Investigation Report
* U.S. Army Criminal Investigation Command (CID) Report of Investigation
* chapter 14 proposed separation and initiation memoranda
* fourteen recommendation letters for his retention
* ADRB Case Report and Directive
* Criminal Hearing/Disposition Update
* Expungement Order
* letter from the Commonwealth of Virginia
* Associate of Science in Allied Health Science diploma
* Dean's List certificate

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's UOTHC discharge to an honorable or a general discharge and a change to his RE code to a "1" or "2."

2.  Counsel states:

   a.  The basis for the applicant's involuntary separation was his plea of guilty to simple assault and battery in the Commonwealth of Virginia in 2008.  However, since the applicant's involuntary separation board in 2009 and review by the ADRB the same year, his complete criminal record has been expunged.  The finding of the court was: "the continued existence and possible dissemination of information relating to the arrest of the petitioned causes or may cause circumstances that constitute a manifest injustice to the petitioner."

   b.  The Commonwealth of Virginia recognized that the stigma associated with the applicant's discharge was too great a burden and has taken steps to alleviate its ramifications.  As the applicant no longer possesses the conviction with which the underlying discharge was associated, an upgrade of his discharge is now necessary in the interest of justice.

   c.  The applicant was initially arrested and booked on a 2008 complaint; the arresting officers listed a myriad of possible charges, including numerous violent felonies.  Understandably, the applicant's chain of command was concerned about those allegations and took steps to initiate discharge.  However, as the facts of the case began to reveal themselves, local prosecutors realized the case was nothing more than a simple assault and battery and accepted the applicant's plea of guilty to that offense alone.  

   d.  Throughout the discharge process, commanders and the judge advocate general who advised them continuously referenced the alleged violent felonies, despite a grave lack of evidence to support their assertions.  In fact, reference to those felonies was made at the involuntary separation board, as demonstrated by the board index and the following attachments:

		(1)  Commander's Proposal of Separation Board memorandum;

		(2)  Commander's Counseling and Notification of Board memorandum;

		(3)  Certified Criminal Conviction and Virginia's Courts Cases Information; and

		(4)  Criminal Investigative Command's Report of Incident.

   e.  These documents should never have been considered by the board due to their questionable relevance and likelihood to confuse or mislead the board members.  They were admitted and duly considered, constituting a major injustice in the case.

   f.  As counsel, he possesses serious misgivings about the quality of counsel appointed to represent the applicant in 2008 for the following reasons:

		(1)  The applicant's Trial Defense Service lawyer made no objections to the admission of the foregoing listed documents.

		(2)  All references to the alleged violent felonies were made with no push-back from assigned counsel.

		(3)  The civilian counsel did not explore the issue of self-defense before the applicant entered his guilty plea.  There existed evidence at the time that the applicant was being blackmailed by a man he allegedly assaulted and that man pulled a knife on the applicant to which the applicant acted in self-defense.  As a result (and due to no fault of his attorneys at the time), the applicant faced a serious "trial penalty" which made it his best option to enter a guilty plea.

   g.  Considering the violent felonies with which the applicant was arbitrarily charged, he was facing the possibility of life in prison.  His guilty plea allowed him to leave the courtroom with time served.  Further review of the case resulted in total expungement of even that misdemeanor conviction.  Effective representation of counsel in 2008 could have resulted in that allegation being dropped prior to adjudication and the Army's subsequent involuntary separation.

   h.  The alleged assault in that case happened between two men who had been engaged in homosexual activity with one another.  The board's legal advisor did not issue an instruction to the members of the board to not consider the underlying homosexual behavior in arriving at their recommendation of either discharge or retention.  Although there is no evidence that pre-assault behavior entered into the deliberations of the members, those facts were discussed at the board.  One cannot be sure today that the applicant received a hearing that was free of member bias and undue speculation when so much potential bias was not annotated for the record (there exists no verbatim transcription of the board proceedings).  The potential for such bias and the lack of a verbatim transcription should cut in favor of the applicant in this request.

   i.  The applicant was a superb Soldier, as demonstrated by the many letters of recommendation he had amassed throughout the process.  He recently earned his Associate's Degree in Allied Health Science.  He is en route to a Bachelor's Degree in Nursing and Health Care Management.  He requests consideration of the applicant's positive contributions to society to date and his potential for further societal contributions in processing this request.

3.  Counsel provides no additional evidence.

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army (RA) on 21 May 1998 and he held military occupational specialty 92F (petroleum supply specialist).  He served in Kuwait from 25 November 1998 through 20 May 1999.

3.  He was honorably discharged on 19 June 2000 for the purpose of immediate reenlistment.  He reenlisted in the RA on 20 June 2000.

4.  He was honorably discharged on 11 April 2002 for the purpose of immediate reenlistment.  He reenlisted in the RA on 12 April 2002.  He served in Afghanistan from 29 January through 29 July 2003.  He was promoted to pay grade E-5 on 1 March 2007.

5.  He was honorably discharged on 27 September 2006 for the purpose of immediate reenlistment.  He reenlisted in the RA on 28 September 2006.



6.  His record contains and he provided copies of the following:

   a.  Three Virginia Courts Case Information forms, filed on 22 October 2007, which show the applicant was charged with attempted murder in the first degree, robbery, and abduction by force/intimidation on 8 October 2007.  He was arrested on 19 October 2007 and held in custody.  The form shows the final disposition was Nolle Prosequi (we shall no longer prosecute).

   b.  An Agent's Investigation Report, dated 23 October 2007, wherein the agent stated the applicant was arrested for attempted murder, robbery, abduction, and malicious wounding.

   c.  A CID Report of Investigation memorandum, dated 5 November 2007, which shows he was arrested on 19 October 2007 for foregoing charges.

   d.  Three Virginia Courts Case Information forms, filed on 26 February 2008, which show the applicant was charged with attempted murder, abduction by force/intimidation, and an amended charge of assault and battery on 8 October 2007.  He was arrested on 25 February 2008 and held in custody.  The form shows the final disposition was Nolle Prosequi for the charges of attempted murder and abduction by force/intimidation.  He was found guilty of the amended charge for assault and battery and was sentenced to 12 months, a suspended sentence of 1 month, a court fine, and unsupervised probation.

   e.  A memorandum, Subject:  Proposed Separation Action Under the Provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, wherein the applicant's company commander recommended the applicant’s separation following his arrest on 19 October 2007 on felony warrants for attempted murder in the first degree, abduction by force/intimidation, robbery, attempt to kill/murder, and malicious wounding that occurred on 8 October 2007.  The company commander stated the applicant was held without bond until 9 May 2008.  The Commonwealth of Virginia Nolle Prosequi all of the charges except for the malicious wounding which was amended to assault and battery.  The applicant was found guilty of a misdemeanor assault and battery and sentenced to time served (12 months and 1 month suspended), 6 months' probation, and he paid $71.00 in fines.  The seriousness of the circumstances was such that the applicant's retention would have an adverse impact on military discipline, good order, and morale.

   f.  A memorandum, Subject: Separation Under the Provisions of Army Regulation 635-400, chapter 14, wherein the applicant's company commander initiated action to separate the applicant for conviction by a civilian court with a UOTHC discharge.  He advised the applicant of his rights.
   g.  Fourteen letters of recommendation for his retention on active duty from members of his former chain of command and battalion.

7.  On 16 October 2008, after counseling with counsel, the applicant acknowledged receipt of the proposed separation action.  He also acknowledged he understood he could receive a UOTHC discharge and the results of such a discharge.  He elected to appear before a board of officers.

8.  On 20 November 2008, he was notified of appointment of an Administrative Separation Board and advised of his rights.

9.  On 18 December 2008, an Administrative Separation Board convened and found that by a preponderance of the evidence that the applicant was convicted by a civil court.  The board recommended that the applicant be separated from the Army with a UOTHC discharge.

10.  On 8 January 2009, the Office of the Staff Judge Advocate found the proposed separation legally sufficient and complied with all applicable requirements of Army Regulation 635-200, paragraph 14-5.

11.  On 9 January 2009, the separation authority approved the applicant's discharge, directed the applicant's reduction to pay grade E-1, and the issuance of a UOTHC discharge.

12.  On 21 January 2009, he was discharged accordingly under the provisions of Army Regulation 635-200, chapter 14, for Misconduct (Civil Conviction).  He was credited with completing 10 years, 1 month, and 11 days of net active service and time lost from 19 October 2007 through 8 May 2008.  His service was characterized as UOTHC.  His DD Form 214 lists in:

* Item 26 (Separation Code) – JKB
* Item 27 (RE Code) – 3

13.  On 20 November 2009, the ADRB denied his request for an upgrade of his discharge.

14.  The applicant further provided copies of the following:

   a.  A Criminal Hearing/Disposition Update, dated 8 October 2012, which shows he was charged with malicious wounding and sentenced to 12 months with a suspended sentence of 1 month.

   b.  An Expungement Order, dated 19 December 2012, does not list the crime(s) or offense(s) and stated:

		(1)  "A nolle prosequi of the charge(s) has been taken or the charge(s) have been otherwise dismissed, including dismissal by accord and satisfaction pursuant to Va. Code 19.2-151.

		(2)  The court finds that, "the continued existence and "the continued existence and possible dissemination of information relating to the arrest of the petitioned causes or may cause circumstances that constitute a manifest injustice to the petitioner."

		(3)  The court orders that, "the police and court records, including electronic records, relating to such charge(s) be expunged pursuant to subsection F (acquittal/dismissal), of Va. Code 19.2-392.2.

   c.  A letter from the Commonwealth of VA, dated 26 July 2013, wherein the applicant was advised of the closure of his criminal history records pursuant to properly-submitted court orders for the expungement of records and all criminal justice agencies identified as having had possession or received dissemination of the identified criminal history record information for the charges and dates identified, had indicated that such records had been expunged in accordance with the requirements of the Code of Virginia.

   d.  His Associate of Science in Allied Health Science diploma, dated 14 September 2013, and the Dean's List certificate, dated September 2013.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 14-5 – an individual would be considered for discharge and the case initiated and processed through the chain of command to the general court-martial convening authority when initially convicted by civil authorities, or action was taken which was tantamount to a finding of guilty when the sentence by civil authorities included confinement for 6 months or more, without regard to suspension or probation.  A UOTHC discharge was normally appropriate for a member discharged under that chapter; however, the separation authority could direct a general discharge if such was merited by the member's overall record.

   b.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.
16.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the RA, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribed basic eligibility for prior-service applicants for enlistment and included a list of Armed Forces RE codes.  The regulation stated:

* RE-1 applied to persons who completed an initial term of active service who were fully qualified for enlistment when separated
* RE-2 applied to persons qualified for enlistment provided reason and authority did not preclude enlistments or required a waiver
* RE–3 applies to a person who was not considered fully qualified for reentry or continuous service at time of separation, but disqualification was waivable

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, prescribed the specific authorities reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214. The regulation stated the SPD code of JKB would be used for the involuntary discharge under the provisions of Army Regulation 635-200, chapter 14, for Misconduct (Civil Conviction).

18.  The SPD/RE Code Cross Reference Table, in effect at the time, provided instructions for determining the RE codes for Active Army Soldiers and Reserve Component Soldiers.  That cross reference table stated that the SPD code of "JKB" had corresponding RE code of 3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was arrested on 19 October 2007 on felony warrants for attempted murder in the first degree, robbery, and abduction by force/intimidation.  He was held without bond.  On 25 February 2008, the Commonwealth of Virginia Nolle Prosequi all of the charges except for the malicious wounding which was amended to assault and battery.  He was found guilty of a misdemeanor assault and battery and sentenced to time served (12 months, 1 month suspended), 6 months' probation, and he paid $71.00 in fines.  

2.  The applicant and counsel's contentions and the documentation submitted by the applicant were carefully considered.  The Expungement Order submitted by the application cleared the applicant's record of the misdemeanor conviction.  However, it did not invalidate the reason for his discharge.  An expungement order serves to remove the conviction from his civilian records.  
3.  Notwithstanding this order, it stands he was found guilty of a misdemeanor assault and battery and sentenced to time served.  That was a civil conviction and separation action was initiated in accordance with pertinent regulations.  An Administrative Separation Board recommended he be separated with a UOTHC discharge.  The separation authority approved his discharge and he was discharged accordingly on 21 January 2009.

4.  Neither the applicant nor counsel have provided any evidence or a convincing argument to show the actions of the applicant's counsel and decisions of the separation board were procedurally flawed or otherwise unjust or inequitable.  Neither the applicant nor counsel have provided sufficient evidence to show that the applicant's discharge should be upgraded.  The applicant's military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable or a general discharge.

5.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge.

6.  Upon discharge, he was assigned a separation code of JKB and an RE code of 3.  The separation code and the RE code of 3 were appropriate based on the guidance provided in applicable regulations for Soldiers separating under chapter 14.  Considering all the facts, it appears he was properly barred from reenlistment for his past performance and estimated potential of him not being in keeping with military discipline, good order, and morale.

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)                                         AR20140000550



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ABCMR Record of Proceedings (cont)                                         AR20140000550



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