RECORD OF PROCEEDINGS


	IN THE CASE OF:     


	BOARD DATE:	  4 October 2007
	DOCKET NUMBER:  AR20070006379 


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


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Susan A. Powers

Chairperson

Mr. Edward E. Montgomery

Member

Mr. Qawiy A. Sabree

Member


	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge under honorable conditions be upgraded to honorable.
 
2.  The applicant states, in effect, that he was told his discharge would be automatically upgraded to honorable after 6 months.  His status was never changed to honorable and he would like it to be corrected.

3.  The applicant provides no additional documentation.

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.  On 3 April 1985, the applicant enlisted in the New York Army National Guard. He completed his initial active duty for training and was awarded military occupational specialty 12B1O (Combat Engineer).  

3.  On 8 March 1988, the applicant enlisted in the Regular Army for 4 years.   He was assigned for duty as a combat engineer with the 2nd Engineer Battalion, 2nd Infantry Division, in the Republic of Korea.  He served with this unit until his return to the United States on 17 March 1989.

4.  On 26 June 1989, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for willfully altering an Individual Sick Slip (DD Form 689).  The punishment included reduction to private, pay grade E-2; a forfeiture of $182.00 pay per month for 1 month; and 
14 days of restriction and extra duty.


5.  On 11 July 1989, the applicant’s commander recommended that he be barred to reenlistment.  The commander based his recommendation on dishonored checks written by the applicant in March, April, and May 1989.  He stated that the applicant had been given counseling and checkbook balancing classes.  His inability to maintain control of his financing made him unsuitable for future service.  The applicant was furnished a copy of the bar to reenlistment and he elected not to make a statement in his own behalf.  On 12 July 1989 the bar to reenlistment was approved.  The applicant did not appeal the action.

6.  On 10 August 1989, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to the commission of a serious offense.   The commander based his recommendation on the applicant’s altering of a sick slip and writing six worthless checks totaling $261.40.  He recommended that the applicant be discharged with an under honorable conditions characterization of service.

7.  On 10 August 1989, the applicant consulted with counsel concerning his rights.  He elected not to make a statement in his own behalf.

8.  On 16 August 1989, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.

9.  Accordingly, on 29 August 1989, the applicant was discharged under honorable conditions.  He had completed 1 year, 5 months, and 22 days of creditable active service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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, convictions by civil authorities, and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

12.  Army Regulation 635-200 further provides, in pertinent part, that the misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform code of Military Justice (UCMJ).

13.  Under the UCMJ, the maximum punishment allowed for either issuing worthless checks with the intent to deceive in order to procure anything of value of $500.00 or less or for altering an official document is a punitive discharge.

DISCUSSION AND CONCLUSIONS:

1.  The record shows one offense of altering an official document and six offenses of issuing worthless checks.  This misconduct constitutes the commission of a serious offense.

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

3.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

4.  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 or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory. 

6.  In view of the above, the applicant’s request should not be granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ SAP __  __EEM__  __QAS  __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




__ Susan A. Powers __
          CHAIRPERSON




INDEX

CASE ID
AR20070006379
SUFFIX

RECON
 
DATE BOARDED
20071004 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.6000
2.

3.

4.

5.

6.