AR20150010084

IN THE CASE OF

BOARD DATE: 16 June 2016

DOCKET NUMBER: AR20150010084

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

____X____ ____X____ ____X____ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 16 June 2016

DOCKET NUMBER: AR20150010084

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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.

IN THE CASE OF:

BOARD DATE: 16 June 2016

DOCKET NUMBER: AR20150010084

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 two applications, an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable or general, under honorable conditions discharge (HD or GD).

2. The applicant states:

* he did not receive nor was he offered legal representation
* he was misguided by his chain of command to make statements in his defense
* he feels he was unjustly processed and in his state of mind, he was not and did not have the ability to defend himself due to the surrounding circumstances
* his commander told him if he just accepted the punishment without a fight, he would be given leniency
* he was never misleading and spoke the truth throughout the process and accepted his punishment

3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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 3January 1996. He held military occupational specialties 19K (Tank Crewman), 19D (Armor Crewman), and 95B (Military Police).

3. A DA Form 4833 (Commanders Report of Disciplinary or Administrative Action) dated 20 May 2001 shows he was accused of making a false official claim, insurance fraud, and conspiracy during the period 9 March through 30 September 2000.

4. On 27 March 2001, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for, while married, wrongfully having sexual intercourse with four women on numerous occasions between 1 August 1999 through 30 August 2000. The applicant did not demand trial by court-martial, he requested a closed hearing without anyone to speak in his behalf, and he did not appeal the resulting punishment.

5. On 5 April 2001, the applicant underwent a mental status evaluation that showed the following:

* his behavior and thought content were normal
* he was fully alert and oriented
* his mood was unremarkable
* his thinking process was clear
* his memory was good
* he was mentally responsible
* he met retention requirements
* he had the mental capacity to understand and participate in separation proceedings.

6. On 23 April 2001, the unit commander initiated separation action against the applicant under the provisions of Army Regulation 635-200 (Enlisted Separations Enlisted Personnel), paragraph 14-12c (Commission of a Serious Offense). He cited the applicants sexual misconduct with four persons and his conspiracy to commit insurance fraud as the basis for the separation action. The applicant acknowledged receipt of the notification on 23 April 2001.

7. On 24 April 2001, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects. He completed his election of rights indicating his options to voluntarily waive consideration of his case by a board of officers contingent upon receiving a characterization of service no less favorable than a GD and to make a statement in his own behalf.

8. On 26 April 2001, the applicant prepared a statement indicating:

* he accepted responsibility for his actions, did not ask for leniency, remained honest, and never denied his actions to avoid punishment
* he brought great discredit upon himself, his unit, and most of all his family
* his punishment was receipt of an Article 15, reduction of rank, 45days of extra duty, forfeiture of pay, and separation from the Army
* he was treated unfairly because the other Soldier involved in the insurance fraud was charged with more serious offenses, yet received a GD
* he did enough damage to his marriage and a UOTHC discharge would only add more problems affecting his family and his chances of obtaining a job
* his performance throughout his enlistment was always commendable, he never got in trouble, and he always performed to the fullest

9. On 21 May 2001, the separation authority denied the applicant’s request for a conditional waiver. He appointed an administrative separation board to determine the appropriate disposition of the applicants elimination under the provisions of paragraph 14-12c(2) of Army Regulation 635-200.

10. On 30 May 2001, the applicant again consulted with legal counsel and voluntarily waived consideration of his case before an administrative separation board. He submitted a conditional waiver indicating:

* he fully understood his decision to waive his rights to have his case considered by an administrative separation board
* he was not coerced in reaching this decision
* he understood he could encounter substantial prejudice in civilian life
* he might be ineligible for many or all benefits as a veteran under both State and Federal laws

11. On 4 June 2001, in an email, the Garrison Legal Clerk notified the Senior Defense Counsel of the applicants desire to waive his rights for an administrative separation board. The Senior Defense Counsel gave instructions to have the applicant appear before him or any other trial defense counsel to submit an unconditional waiver with his election of rights.

12. On 5 June 2001, the applicant again consulted with legal counsel and he was advised of the basis for the contemplated separation action and its effects. He completed his election of rights indicating:

* before completing this format, he was afforded the opportunity to consult with appointed counsel for consultation and consulted with counsel
* he waived consideration of his case by an administrative separation board
* he was advised of his rights to submit a conditional waiver of his rights to have his case considered by an administrative separation board
* he waived personal appearance before an administration board
* he did not submit a statement in his own behalf
* he requested consultation with military counsel or civilian counsel at no cost to the Government

13. On 6 June 2001, the separation authority approved the unconditional waiver and directed that the applicant be separated under the provisions of chapter 14, paragraph 14-12c (Commission of a Serious Offense), Army Regulation 635-200, due to misconduct, with a UOTHC discharge. On 12 June 2001, the Army discharged the applicant accordingly.

14. The DD Form 214 issued to the applicant upon his discharge on 12 June 2001, confirms he was separated under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct. It shows he completed
5 years, 5 months, and 10 days of net active service this period and that he held the rank of private/E-1 at the time of his discharge.

13. On 5 February 2003, the ADRB after having carefully reviewed the applicants record and the issues he presented, concluded the applicants discharge was proper and equitable, and unanimously voted to deny his request for an upgrade.

REFERENCES:

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

a. Chapter14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and AWOL. The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. An honorable (HD) or a GD may be awarded by the separation authority if warranted by the member’s overall record of service; however, a discharge UOTHC is normally considered appropriate for members separated under these provisions.

b. Paragraph 3-7a states that an HD 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.

c. Paragraph 3-7b states that a GD 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:

1. The applicant contends the Army should upgrade his UOTHC discharge to a GD or HD. However, the evidence of record confirms he committed the offenses of conspiracy to commit fraud and wrongfully having sexual intercourse with four women, not his wife, on multiple occasions in over a years span. Through his misconduct, he knowingly risked a military career and clearly diminished the overall quality of his service below that meriting an HD or GD. In addition, the basis for his characterization of service resulted from his own misconduct and not the misconduct of another Soldier.
2. The evidence of record confirms his separation processing was in accordance with the applicable regulation. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3. The applicant claims the Army did not offer him an opportunity to obtain legal representation and misguided him to make statements in his defense. However, the evidence of record confirms he acknowledged the Army afforded him the opportunity to consult with counsel and, in fact, he did consult with counsel on at least three occasions. He also exercised his rights when he opted to make a statement in his own behalf on 26 April 2001 and declined to make a statement on 5 June 2001. Finally, when completing his election of rights, the applicant confirmed no one coerced his decisions.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150010084

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150010084

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2