BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160015385 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160015385 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. BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160015385 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: * upgrade of his under other than honorable conditions character of service to honorable * changing the narrative reason for separation to an appropriate alternative * to personally appear before the Board 2. The applicant states that after his separation, he requested his medical records from the Department of Veterans Affairs (VA). When he received his records, he found his signature had been forged on several of the documents. He submitted these documents to a forensics expert who is certified by a Federal court. This expert determined, as a matter of scientific fact, those documents were forged. [The specific documents he alleges were forged are his written request for a discharge in lieu of court-martial under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), and his personal statement to the separation authority. In effect, he asserts, because these documents are allegedly forged, his character of service is invalid, and upgrade is warranted.] 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 4 August 2010 * Questioned Document Examiner Letter, dated 19 August 2014, with attachments (identified as K-1 through K-3, and Q1 through Q2) * Expert Document Examiner résumé 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 28 September 2005. 3. DA Form 3975 (Military Police (MP) Report), dated 28 January 2010 and prepared by the Directorate of Emergency Services, Fort Hood, TX, stated an investigation revealed the applicant had stolen government property valued at about $1,000 and made false official statements. Upon questioning, the applicant waived his rights and admitted he had committed the larceny after initially lying about his role in the theft. 4. The applicant's commander preferred court-martial charges against the applicant on 29 June 2010. He was charged with: * two specifications of failing to go to his appointed place of duty at the time prescribed (failure to repair (FTR)) * three specifications of making false official statements to Officer AF * two specifications of selling, without authority, two items of military property (a flat screen television and a DVD multi-disk player), valued at about $1,496.30 and $289.99, respectively * one specification of stealing a flat screen television and a DVD multi-disk player, of a total value of about $1,786.29 * one specification of unlawfully entering a storage area with the intent to commit larceny 5. On 8 July 2010, the applicant consulted with legal counsel (a military attorney). He was advised that the basis for the contemplated trial by court-martial included alleged offenses for which either a bad conduct and/or a dishonorable discharge was authorized. Subsequent to receiving counsel, he voluntarily, and in writing, requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200. (The applicant asserts his signature was forged on this document.) a. He elected to submit a statement in his own behalf, and he acknowledged he had received a copy of his request for chapter 10. He additionally affirmed: * he had not been subjected to any coercion whatsoever by any person * if his discharge request was approved, he could be discharged under other than honorable conditions * he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits administered by the VA * he could be deprived of his rights and benefits as a Veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life * once his request was submitted: * it could be withdrawn with the consent of the separation authority; or, * without such consent in the event he was acquitted; or, * if a court adjudged a sentence that did not include a punitive discharge, even though a punitive discharge was an available punishment b. In his self-authored statement, the applicant essentially asked the separation authority to approve his request for a chapter 10 discharge. He acknowledged he had made mistakes since entering the Army, but felt he had learned valuable lessons, and wanted to become a contributing member of society. He joined the Army to serve his country and follow in his father's footsteps (his father was a retired Air Force master sergeant). He went on to provide a summary of his service, and stated he intended to attend school on his separation. (This is the second document the applicant alleges to be forged.) 6. On 15 July 2010, the separation authority approved the applicant's request and directed his discharge an under other than honorable conditions. The charges were subsequently dismissed without prejudice, and he was reduced to private/E-1. The applicant was discharged accordingly on 4 August 2010. 7. His DD Form 214 shows he completed 4 years, 10 months, and 7 days of net active creditable service. a. He was awarded or authorized: * Army Good Conduct Medal (1st Award) * National Defense Service Medal * Korea Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Driver and Mechanic Badge with Mechanic Component Bar b. His character of service was under other than honorable conditions. The separation authority was AR 635-200, chapter 10. The narrative reason for separation was in lieu of trial by court-martial. 8. In January 2011, he requested the Army Discharge Review Board (ADRB) to upgrade his character of service to honorable. a. He provided the following arguments in support of his claim: * he was an outstanding Soldier who never had any problems, and he never got any kind of action under the Uniform Code of Military Justice (UCMJ) * he never took government property without permission – there was a television sitting in a room for a while, and he asked the charge of quarters (CQ) if he could take it; the CQ said, "go for it" * a week later he was told a television had been taken; he called the MPs and explained how the television came into his possession * he wrote, "I was told by Trial Defence [sic] I could go back into the Army after six months if I took a chapter 10 discharge, so I did"; he also claims he was told he could start his military career all over again b. On 24 August 2011, the ADRB found his discharge had been both proper and equitable; his request was denied. 9. The applicant provides: a. A résumé for his expert document examiner, showing the examiner's background, and claiming he has testified in numerous court cases all around the United States, as well as in a number of foreign countries. The examiner indicates he has appeared on television, was the Dean of the School of Forensic Document Examination at Handwriting University, and has been qualified as an expert witness in U.S. district court. While he does not indicate that a Federal court certified him, he does claim a certification from the American Bureau of Document Examiners. b. A notarized document, titled Questioned Document Examiner Letter, dated 19 August 2014, prepared by the document examiner, wherein he essentially states: * he examined three documents with known signatures, which he labeled "K1" through "K3" * he compared these exemplar signatures to the signatures on the two documents alleged by the applicant to be forged; he labeled these documents "Q1" and "Q2" * based on his expert analysis, he found "Q1" and "Q2" were indeed forged; he was willing to testify in a court of law as to this conclusion REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. 2. The Manual for Courts-Martial includes a chart showing the maximum punishments associated with each violation of the UCMJ. The following include a dishonorable or bad conduct discharge: * Article 107 (False Official Statements) * Article 108 (selling military property valued at more than $500) * Article 121 (Larceny of military property valued at more than $500) * Article 130 (Housebreaking) 3. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, in paragraph 2-11, that 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: 1. By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record, including independent evidence he provided, 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. 2. The applicant requests the upgrade of his under other than honorable conditions discharge, received under the provisions of AR 635-200, chapter 10. He alleges, based upon documents he received from VA, the copies of his chapter 10 request and his personal statement to the separation authority were forged. By making this claim, he, in effect, asserts his character of service is invalid and upgrade is warranted. In support of his claim, he provides a notarized statement from a document examiner. 3. Discharges under this chapter are based on a voluntary request, and, notwithstanding the assertions of his document examiner, the evidence of record strongly suggests the applicant did, in fact, voluntarily, willingly, and in writing requested discharge in lieu of trial by court-martial. a. This indication is supported by an argument he submitted with his request for upgrade to the ADRB, wherein he wrote, "I was told by Trial Defence [sic] I could go back into the Army after six months if I took a chapter 10, so I did." b. Additionally, in his ADRB application, he affirmed, by implication, he had discussed his options with his counsel. His chapter 10 request reflects that counsel affirmed the applicant personally made the choice to be discharged in lieu of court-martial (the applicant does not allege forgery with regard to his counsel's signature). 4. A review of the evidence of record shows all requirements of law and regulation were met, and the evidence strongly suggests the rights of the applicant were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160015385 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160015385 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2