IN THE CASE OF:    

		BOARD DATE:  18 June 2015	  

		DOCKET NUMBER:  AR20140019112 


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 under other than honorable conditions discharge
* Restoration of his rank/pay grade to specialist (SPC)/E-4
* Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show completion of the 91C course
* A personal hearing 

2.  The applicant states:

* He was 27 years of age at the time of his discharge in lieu of trial by court-martial and could not afford an attorney
* The military attorney that was assigned to him wanted to go to trial; the best option was to take the oath; he recently noticed that taking the oath was an admission of guilt 
* He served our country prior to this enlistment and he chose a combat military occupational specialty (MOS)
* He was willing to die for our country and he still is; he would not discredit himself like that 
* In his statement, he told the investigators everything because he did not do anything wrong 
* He is currently a businessman with over 100 employees and he understands policies and procedures 


3.  The applicant provides:

* DD Form 214 ending on 19 March 1997 
* DA Form 458 (Charge Sheet)
* DA Form 4856 (General Counseling Form)
* Statement from a sergeant
* Printout regarding variable housing allowance
* Residential Rental Agreement
* Verification of residency
* Hawaii Rental Agreement
* DD Form 139 (Pay Adjustment Authorization)
* Character reference statements 

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's records show he enlisted in the Regular Army (RA) on 27 December 1990.  He completed basic combat and advanced individual training and he was awarded MOS 16S (MANPADS Crewmember). 

3.  He served in Korea from August 1991 to August 1992.  He was then reassigned to Fort Hood, TX, and he was promoted to SPC/E-4 on 4 November 1992. 

4.  He was honorably released from active duty on 8 May 1993 by reason of expiration of term of service and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation. 

5.  On 27 May 1995, he was ordered to active duty for training (ADT).  He was assigned to the U.S. Army Academy of Health Sciences, Fort Sam Houston, TX, for completion of approximately 50 weeks of MOS training in MOS 91C (Practical Nurse). 
6.  He entered active duty on 27 May 1995.  He completed 10 weeks of training in MOS 91B (Medical Specialist) from on or about 30 May to 14 August 1995.  He also completed Phase I (6 weeks) of MOS 91C from on or about 15 August to 6 October 1995.  

7.  He was reassigned to Company B, Madigan Army Medical Center, Fort Lewis, Tacoma, WA, for completion of training.  

8.  On 16 October 1996, the U.S. Army Criminal Investigation Command (also known as CID) issued a final Report of Investigation (ROI).  The ROI states that on or about 8 October 1996, an investigation established probably cause to believe the applicant committed the offenses of making false official statements and fraud against the Government when he submitted documents to finance requesting payment of a housing allowance and stating his spouse resided with him in off post quarters which he knew to be false as his wife was not residing with him.  The CID ROI includes most of the applicant's documents provided with this application.

9.  On 5 February 1997, court-martial charges were preferred against the applicant for:

* one specification of failing to go a the time prescribed to his appointed place of duty
* one specification of dereliction in the performance of his duties in that he negligently failed to report that he was receiving separate rations while he was on a meal card 
* one specification of larceny/stealing approximately $568, the property of the United States Government 
* one specification of larceny/stealing approximately $1,200, the property of the United States Government 
* one specification of presenting a fraudulent and false claim in the amount of $1,200 for dependent travel
* one specification of presenting a fraudulent and false claim in the amount of $568 for a travel advance for his dependents 
* one specification of presenting a fraudulent and false claim to his commander for approval in the amount of $125.82 for housing allowance 

10.  His chain of command (immediate, intermediate, and senior commanders) recommended trial by a special court-martial empowered to adjudge a bad conduct discharge. 


11.  On 27 February 1997, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, he acknowledged:

	a.  he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person;

	b.  he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge;

	c.  he understood if the discharge request was approved, he could be deprived of many or all Army benefits that he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws; and

	d.  that under no circumstances did he desire further rehabilitation or to perform further military service.

12.  The applicant's immediate, intermediate, and senior commanders recommended approval of the discharge action with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

13.  On 28 February 1997, following a legal review for legal sufficiency and consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge and reduction to the lowest enlisted grade. 

14.  On 28 February 1997, his chain of command published a DA Form 4187 (Personnel Action) reducing him to private (PV1)/E-1 effective 28 February 1997, as ordered by the separation authority. 

15.  On 19 March 1997, the applicant was discharged accordingly.  His DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of court-martial with an under other than honorable conditions characterization of service.  His DD Form 214 also shows he completed 1 year, 9 months, and 23 days of net active service this period and 2 years, 4 months, and 12 days of prior active service.  It also shows in:

* Items 4a (Grade, Rate or Rank) and 4b (Pay Grade), PV1 and E-1 
* Item 11 (Primary Specialty) – 91B Medical NCO, 1 year and 7 months
* Item 12h (Effective Date of Pay Grade) – 28 February 1997 
* Item, 14 (Military Education), Medical Specialist Course, 10 weeks, 1995; and Practical Nurse Course, Phase I, 6 weeks, 1995

16.  On 13 September 2010, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable.  Accordingly, the ADRB denied his petition for an upgrade of his discharge. 

17.  He provides: 

	a.  DA Form 4856 (General Counseling Form), dated 3 February 1997.  His first sergeant counseled him regarding his failure to be at his appointed place of duty at the time prescribed.  He (the applicant) did not concur with the counseling and explained himself. 

	b.  A statement from a sergeant who indicates she was the one who prepared the DA Form 4187 for the applicant for separate rations and that she took the meal card from him and kept it in her desk until the commander told her to give it back to the applicant.  She did (gave it back) and the applicant used it. 

	c.  Printout regarding variable housing allowance.

	d.  Residential Rental Agreement, dated 14 February 1996, not signed by any tenants. 

	e.  Verification of residency, dated 15 July 1996, from an individual who states the applicant's wife had been residing with him in Honolulu since January.  

	f.  Hawaii Rental Agreement, dated 4 September 1992, for a tenant with the name "In Suk." 

	g.  DD Form 139 (Pay Adjustment Authorization) in regard to the applicant's repayment of the full Army Emergency Relief loan. 

	h.  Character reference statements, dated in 1997, in which the authors describe the applicant as an outstanding Soldier.  He is also described as hard working, honest, and loyal to others.   

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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.

	c.  Paragraph 3-7b provides that 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. 

19.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 


DISCUSSION AND CONCLUSIONS:

1.  With respect to the characterization of service: 

	a.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

	b.  The applicant was discharged because he requested a voluntary discharge.  The evidence of record clearly shows court-martial charges were preferred against him and that he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions.  He could have elected the court-martial if he believed he was innocent of the charges or if believed he had extenuating circumstances. 

	c.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant's discharge to either an honorable or a general discharge.

2.  With respect to his rank/pay grade, when the separation authority approved the applicant's voluntary discharge in lieu of trial by court-martial, he ordered the applicant's reduction to the lowest enlisted grade as required by regulation.  This grade is correctly shown on the applicant's DD Form 214 and there is no reason to change it.

3.  With respect to his MOS: 

	a.  The available evidence shows he completed 10 weeks of training in MOS 91B and Phase I (6 weeks) of MOS 91C.  Both training courses are listed in item 14 of his DD Form 214.  There is no evidence in his records and he provides none to show he completed the full requirements for MOS 91C.  

	b.  Because he completed the requirements for MOS 91B and there is no evidence he completed the full requirements for MOS 91C, only MOS 91B is shown in item 11.  There no evidence to indicate this entry is in error. 
4.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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)                                         AR20140019112



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ABCMR Record of Proceedings (cont)                                         AR20140019112



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