MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 November 2002
         DOCKET NUMBER: AR2002080196

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Victoria A. Donaldson		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Mr. Eric N. Anderson		Member
Mr. John T. Meixell		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That his general discharge be upgraded to honorable.

APPLICANT STATES: That during the period prior to his discharge he was going through major changes in his personal life. He states that several of his checks were returned by a local bank for insufficient funds and as a result he and his wife owed money for each check and overdraft fees. The applicant contends that he attempted to make arrangements for payment but was unable to pay in full as required prior to his next pay period. He further states that the issue was further compounded by the revelation that his ex-wife purposely neglected to deposit money provided to her from his salary for the specific reason of repaying the outstanding checks. The applicant contends that as a result of these actions, he was cited for financial irresponsibility, that his conduct was considered unfit and unbecoming of a US soldier and that he was involuntarily separated after he took care of the insufficient fund debt.

The applicant provided three letters of support from his current employers that state that he has performed his duties in a trustworthy manner and exhibited dedication, forthrightness and maturity.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant entered active duty on 21 November 1995 for a period of 3 years. He completed basic training and was transferred to Hanau, Germany for duty as a cook.

On 8 August 1997, nonjudicial punishment (NJP) was imposed against the applicant for failure to go at the time appointed to his appointed place of duty. His punishment consisted of reduction to E-2, suspended to be automatically remitted if not vacated before January 1998, forfeiture of $235.00 pay per month for one month, 14 days restriction and 14 days extra duty.

On 4 February 1998, NJP was imposed against the applicant for making and uttering to the Army and Air Force Exchange certain checks for the purpose of currency and things of value, and did thereafter dishonorably fail to maintain sufficient funds for payments of such checks in full upon their presentation for payment between 14 May 1997 and 7 November 1997. His punishment consisted of reduction to pay grade E-2, forfeiture of $250.00 per month for two months, suspended to be automatically remitted if not vacated before 10 August 1998, extra duty for 45 days, and an oral reprimand.

During the period 30 July 1997 through 10 February 1998, the applicant received 18 general counseling forms for various infractions including frequently reporting to duty late, insubordination and financial irresponsibility for uttering bad checks.

Evidence of record shows that the applicant requested assistance through the Consumer Affairs and Financial Assistance Program of the Army Community Service (ACS) and that ACS developed a payment plan for the applicant to follow.

Evidence of record shows that the applicant did not comply with the payment plan developed by ACS and that the applicant continued to write checks with insufficient funds to pay them in full.

The applicant's record shows that he attended and completed the Army Community Service Hanau Checkbook Management Class on 15 October 1997.

Evidence of record shows that on 20 January 1998, the applicant had a total of 62 outstanding checks totaling $4,099.03.

On 17 March 1998, the applicant was notified of his pending separation from the service under the provisions of Army Regulation 635-200, chapter 14, for pattern of misconduct. The unit commander recommended separation with a general discharge and based his recommendation on the applicant's numerous counseling sessions for various infractions and two NJP's.

The applicant consulted with counsel, acknowledged that he may encounter substantial prejudice in civilian life if a general discharge were issued and elected to make a statement on his own behalf. This statement was not in the records available to the Board.

The applicant underwent a medical examination and a mental status evaluation and was cleared for administrative separation.

The appropriate separations authority approved the recommendation for the applicant's separation from the service on 30 March 1998 and directed that his term of service be characterized as general under honorable conditions.

Accordingly, the applicant was discharged under honorable conditions (general) discharge on 16 April 1998 under the provisions of Army Regulation 635-200, chapter 14, for misconduct. He had served 2 years, 4 months and 25 days of total active service.

The Army Discharge Review Boards Agency (ADRB) denied that applicant's request for upgrade to honorable discharge on 9 October 2002. The ADRB unanimously determined that the discharge was proper and equitable and that the discharge was properly characterized as general under honorable conditions.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3. The Board reviewed the applicant's record of service and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge.

4. The Board noted the applicant's current employer's contentions regarding his post service achievements and conduct. However, good post service conduct alone is not a basis for upgrading a discharge.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error unjust. The applicant has failed to submit evidence that would satisfy this requirement.

6. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___MHM_ __ENA__ __JTM___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002080196
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20021105
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200.0000
2.
3.
4.
5.
6.