IN THE CASE OF:	  

		BOARD DATE:	        23 December 2008

		DOCKET NUMBER:  AR20080014942 


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 an upgrade of his discharge from under other than honorable conditions to an honorable or a general discharge.

2.  The applicant states that when he reenlisted in 1992, his reenlistment contract was not forwarded to the finance office and that when his first enlistment expired, he was not getting paid.  He adds that he went to the finance office every pay period and they would give him the run around.  He therefore wrote bad checks in order to support his family.  He also adds that he knew it was wrong, but under the circumstances he had to do what was best for his family and had every intention to pay back the money when he finally received his back pay.  He concludes that he had never been in trouble before this incident and that he served in the Gulf War and was the distinguished honor graduate of his primary leadership development course.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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's records show that he enlisted in the Regular Army for a period of 3 years on 10 November 1987.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91A (Medical Specialist).  His records also show he executed a 2-year reenlistment on 28 July 1990 and a second reenlistment of unknown length on 18 May 1992.  The highest rank/grade the applicant attained during his military service was specialist/E-4.

3.  The applicant's records further show he served in Southwest Asia from 19 October 1990 to 12 April 1991.  His awards and decorations include the Army Commendation Medal (1st Oak Leaf Cluster), the Army Achievement Medal, the Good Conduct Medal, the Noncommissioned Officer Professional Development Ribbon, the National Defense Service Medal, the Army Service Ribbon, the Air Assault Badge, the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, the Marksman Marksmanship Qualification Badge with Rifle Bar, the Southwest Asia Service Medal with three bronze service stars, and the Kuwait Liberation Medal.

4.  On 25 September 1992, the Fort Hood Resident Agency, U.S. Criminal Investigation [Division] Command (USACIDC), Fort Hood, Texas, initiated an investigation against the applicant for larceny of private property.  The investigation revealed that the applicant uttered four checks of various amounts at a local Fort Hood bank on an account that had been closed.  The USACIDC established probable cause that the applicant committed the offense of larceny.

5.  On 21 January 1993, court-martial charges were preferred against the applicant for four specifications of wrongfully and unlawfully, and with intent to defraud, uttering four checks in various amounts knowing that he did not have or would not have sufficient funds for the payment of said checks between 2 September 1992 and 25 September 1992.

6.  On 29 January 1993, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further submitted a statement on his own behalf.  In his statement, he indicated he knows that what he did was wrong and foolish and admitted that he took matters into his own hands; however, he was having pay problems at the time and needed money to send home. 

8.  On 29 January 1992, the applicant's immediate and intermediate commanders recommended approval of the applicant’s request for discharge with the issuance of a UOTHC discharge.

9.  On 29 January 1992, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive a UOTHC Discharge Certificate.  On 11 February 1993, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service with a character of service of UOTHC.  This form further confirms the applicant had completed a total of 5 years, 3 months, and 2 days of creditable active military service.

10.  There is no indication in the applicant’s records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations. 

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, 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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  There is no evidence in the applicant’s records and the applicant did not provide any evidence that shows he encountered financial problems or that he addressed such problems with his chain of command.  Even if he encountered financial problems, he had many legitimate avenues through which he could have received assistance or relief had he chose to use them.

4.  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 has failed to submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.


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.


																XXX
      _________________________
                 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)                                         AR20080014942



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ABCMR Record of Proceedings (cont)                                         AR20080014942



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