IN THE CASE OF:	 

		BOARD DATE:	 16 September 2008 

		DOCKET NUMBER:  AR20080011053


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 effect, changing the character of or reason for his discharge or both.

2.  The applicant states, in effect, that he entered the military on 30 December 1977 and received two honorable discharges.  He also states, in effect, that on 21 November 1989, he was charged with obtaining cash and dishonorably failing to maintain sufficient funds in his bank account.  He was administratively separated under Chapter 10 in lieu of trial by court-martial and reduced to pay grade E-1.  He also requested an appearance before the Army Board for Correction of Military Records (ABCMR) to present his case.

3.  The applicant further states, in effect, that the charges and discharge were not applied in accordance with applicable law and regulation.  He also states, in effect, that it was the duty of his military defense counsel to zealously represent his legal interests.  Counsel did not do that and he did not waive any rights in writing.  He further states that it seemed that his commander and his command had a very inflexible attitude towards him and the disposition of punishment with a view towards ensuring that he received severe punishment without legal facts and supportive evidence.  The government never explained or proved beyond a reasonable doubt the reasons checks were cashed for any reason.  He never was read his rights and questioned pertaining to this matter or any other to this fact.  The fact is that the gist of this offense lies in the conduct of the accused after uttering the instrument, mere negligence in maintaining one’s bank balance 
is insufficient for this offense.  No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein have been made.  

4.  The applicant provides a 13-page self-authored legal brief as an addendum to the DD Form 149 (Application for Correction of Military Record) he submitted to the Board.

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 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 military records show he enlisted in the Army Delayed Entry Program on 3 October 1977 and enlisted in the Regular Army, in pay grade E-1, on 30 December 1977, for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 91A, Medical Specialist.  He reenlisted on 17 July 1980 and 15 June 1988.  He was promoted to pay grade
E-5 on 1 February 1985.  

3.  On 10 October 1989, a DA Imposed Bar to Reenlistment Under the Qualitative Management Program (QMP), was initiated against the applicant.

4.  On 30 October 1989, a Charge Sheet (DD Form 458) was prepared by the Commander, Headquarters and Headquarters Company, Division Support Command, 2nd Armored Division, Fort Hood, Texas.  The applicant was charged with eight specifications of uttering checks on 11, 19, 20, 24, 25, 26, 27, and 31 August 1989, and on 1, 2, 3, 4, 6, 8, and 9 September 1989, for the purpose of obtaining cash and thereafter dishonorably failing to maintain sufficient funds for payment of such checks in full upon their presentation for payment.  

5.  On 21 November 1989, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200, Chapter 10.  In doing so, he acknowledged that he might be 
discharged with a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  He also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other 
Than Honorable Conditions Discharge Certificate, and as a result of the issuance of such a discharge, he may be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Veteran's Administration.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 14 December 1989, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued and that the applicant be reduced to pay grade E-1. 

7.  The applicant was discharged on 5 January 1990, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of court-martial.  He was credited with 11 years, 11 months, and 26 days total active service.  

8.  On 12 June 1996, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.  

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service, in lieu of trial by court-martial.  An under other than honorable conditions discharge was normally considered appropriate.  

10.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

11.  Army Regulation 635-200, paragraph 3-7b, also 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

12.  Army Regulation 15-185 provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for correction of a military record.  Section VI, paragraph 2-11 states, in pertinent part, 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 AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a change to the character or reason for his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  

2.  The applicant’s contentions have been noted; however, based on the available evidence, there is no basis for any changes.  He has submitted no evidence to substantiate his allegations.  The evidence shows he requested discharge in lieu of facing a court-martial for eight specifications of uttering several checks for cash without having sufficient funds for payment of such checks.  The applicant waived his opportunity to appear before a special court-martial to prove his innocence if he felt he was being wrongfully charged or that he was being treated unfairly.  

3.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and from the evidence in this case, it is clear the applicant knew and understood the reasons for his discharge and the type of discharge he would be receiving.

4.  Personal appearances are granted when the Board determines that an applicant may be able to clarify information or provide additional relevant information.  In this case, there were sufficient documents provided by the applicant for the ABCMR to review his case based solely on the documents submitted and those contained in his military records.

5.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.


6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080004889



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ABCMR Record of Proceedings (cont)                                         AR20080011053


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