IN THE CASE OF:	  

		BOARD DATE:	  6 November 2014

		DOCKET NUMBER:  AR20140004549 


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, in effect, an upgrade of his general discharge to an honorable discharge.

2.  The applicant states, in effect:

   a.  He was issued a general discharge because he was accused of having a criminal record before he entered active duty.  However, a judge cleared his records of all charges, but the State of New York did not update their records in a timely manner.  It showed up while he was serving on active duty and caused the fraudulent enlistment charge to be pursued.  He is submitting certified copies of the original documents he received from the courts where he was cleared of all charges.

   b.  It was not his fault the State of New York did not properly do its job in a timely manner and caused his military career to be cut short.  His receipt of a general discharge is an injustice and it is time for a correction.  He received a letter which stated his service was honorable and his DD Form 214 (Certificate of Release or Discharge from Active Duty) needs to be updated as well.  He is proud of his country and his service and it is time for a wrong to be made right.  It took him years to find the proof he needed which had been hidden in a box for 23 years.  




3.  The applicant provides copies of the following:

* 1988 and 1992 Criminal Court of the City of New York Warrant Return
* two Criminal Court of the City of New York Certificates of Disposition
* Letter from the Department of Veterans Affairs (VA)

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 New York Army National Guard (NYARNG) on 28 June 1984 and entered active duty for training on 20 August 1984.  He was relieved from active duty on 29 November 1984 and he was transferred to the NYARNG.  

3.  Orders Number 8-1, issued by Troop B, 1st Squadron, 101st Cavalry, NYARNG, on 21 October 1986, reduced him from pay grade E-3 to E-1 due to misconduct (being absent without leave) with an effective date of 1 November 1986.

4.  On 16 March 1987, in a letter, he was notified that his unit had requested he be discharged from the NYARNG and that an Attribution Management Review Board would review the request on 26 March 1987.  The letter also advised that his presence at the board meeting was encouraged, but it was not mandatory.

5.  On 26 March 1987, the Attribution Management Review Board recommended the applicant be discharged.  On the same date, the separation authority approved the recommendation.

6.  Orders Number 78-66, issued by the NYARNG, on 23 April 1987, discharged him with a general discharge effective 1 May 1987.  


7.  He provided a copy of a Criminal Court of the City of New York Warrant Return which shows he appeared in court on 8 June 1988 to answer charges covered in Court Docket Number 7R005016, dated 1988, and the warrant was vacated.

8.  He enlisted in the Regular Army (RA) on 13 March 1990.  He was awarded military occupational specialty 12B (combat engineer).  

9.  He also provided a copy of Criminal Court of the City of New York Certificate of Disposition, dated 6 December 1990, which shows dismissal of the final offense(s) in Court Docket Numbers:

* 7R005016, dated 1987
* 8R003490, dated 1988
* 8R003491, dated 1988
* 8R006792, dated 1988

10.  He was advanced to pay grade E-2 on 27 December 1990.  

11.  In a memorandum, subject:  Intent to Deny Security Clearance, dated 
6 November 1990, the Chief, Adjudications Division, advised the applicant through his battalion commander of the following:

   a.  He was hereby notified of the command's intent to deny his security clearance based upon review of New York City Criminal Court records which disclosed that on 7 June 1988 he was arrested for driving with a license that had 12 suspensions.  Subsequently, he was ordered to pay a fine or be sentenced to 15 days in jail.  Records further reflected that on 9 August 1988 a bench warrant was issued against him and as of January 1990, the warrant was still outstanding.

   b.  A review of the New York Police Department records, Staten Island, NY, disclosed the following:

		(1)  On 7 June 1988, he was arrested for criminal impersonation, criminal possession of a weapon, and unlicensed operation of a vehicle.  Records indicated he impersonated another by producing a driver's license belonging to another individual.

		(2)  On 5 November 1988, he was arrested for criminal mischief, criminal possession of a weapon and menacing.  He broke the window of a vehicle, grabbed the hair of the individual inside and threatened the individual by putting a knife to the individual's throat.  Records of the New York Criminal Court disclosed that on 14 May 1989, a bench warrant was issued against him and, as of January 1990, the warrant was still outstanding.

		(3)  On 8 March 1989, he completed a DD Form 398-2 (Personnel Security Questionnaire) indicating that he was cited for the offense of family offense in 1988.  He otherwise indicated "no" to questions regarding involvement with law enforcement.

		(4)  His criminal conduct and his apparent knowing and willful falsification or omission of material fact on official government documents indicated a lack of judgment, reliability, and trustworthiness which was considered incompatible with the standards established for the possession of a security clearance.  

   c.  This memorandum was intended to offer him every reasonable opportunity to explain and/or refute the adverse information which was the basis for that action.  His access was hereby suspended until a final determination had been made.  He was further advised of his rights.

12.  He was advanced to pay grade E-2, on 27 December 1990.  He served in Southwest Asia from 22 January to 30 April 1991.

13.  On 7 June 1991, he underwent a mental status evaluation and was diagnosed with a personality disorder.  The examining psychiatrist stated the condition was a deeply ingrained, maladaptive pattern of behavior of long duration which interfered with the applicant's ability to perform duty.  He recommended discharge in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 5-13, would be in the best interests of both the individual and the Army.

14.  On 29 July 1991, the applicant's company commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, paragraph 7-17, for fraudulent entry, based on the applicant's concealment of arrest records and pending bench warrants issued against him prior to entry on active duty.  He recommended the applicant receive an under other than honorable conditions (UOTHC) discharge.  He advised the applicant of his rights.

15.  On 29 July 1991, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action, its effects, and the rights available to him.  He also acknowledged he could receive a general or UOTHC discharge and the results of the issuance either discharge.  He waived his rights and elected to not submit a statement in his own behalf. 

16.  On 29 July 1991, the applicant's battalion commander recorded approval of the applicant's discharge with the issuance of a general discharge.

17.  On 5 August 1991, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge.

18.  Accordingly, on 27 August 1991, he was discharged in pay grade E-2.  He was credited with completing 1 year, 5 months, and 15 days of net active service. His service was characterized as under honorable conditions (general).

19.  He further provided a copy of a Criminal Court of the City of New York Warrant Return which shows he appeared in court on12 March 1992 to answer charges covered in Court Docket Number 8R006792, dated 1988, and the warrant was vacated.

20.  On 9 October 1998, the Army Discharge Review Board denied his petition for an upgrade of his general discharge.

21.  He further provided a letter, dated 26 December 2013, wherein the VA advised him of a summary of his benefits.  The letter stated he had honorable Army service from 20 August to 29 November 1984 and from 13 March 1990 to
27 August 1991.

22.  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 7-17a – fraudulent entry was the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time, might had resulted in rejection.  A Soldier discharged under the provisions of that chapter would be furnished an honorable or a general discharge, or a character of service of UOTHC.

   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 applicant's contentions were carefully considered and found not to have merit.  He was reduced from pay grade E-3 to E-1 and discharged from the NYARNG with a general discharge prior to his enlistment in the RA.  His record contains documentation which shows he knowingly and willfully omitted his arrest records and pending bench warrants issued prior to entry on active duty.  Upon receipt of that information his company commander initiated action to discharge the applicant for fraudulent enlistment based on that concealment.  Those charges were dismissed after his enlistment.  The separation authority approved his discharge and he was discharged accordingly on 27 May 1991.  The second warrant was vacated after he was discharged.

2.  It is noted it appears his discharge processing for fraudulent entry superseded any discharge processing in accordance with paragraph 5-13 of the regulation.

3.  Notwithstanding the court documentation and VA letter he submitted, the evidence shows he received general discharges from both the NYARNG and RA. The award of a VA rating does not establish entitlement to an honorable discharge from the Army.  Operating under its own policies and regulations, the VA awards rating because a medical condition is related to service (service-connected).  

4.  He did not provide sufficient evidence or a convincing argument to show his 1991 discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his criminal conduct coupled with his apparent omission of material facts on official government documents diminished the quality of his service below that meriting a fully honorable discharge from the RA.

5.  Without evidence to the contrary, his 1991 administrative discharge was accomplished in compliance with applicable regulations in effect at the time and the current version, 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 this 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)                                         AR20140004549



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ABCMR Record of Proceedings (cont)                                         AR20140004549



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