IN THE CASE OF:	  

		BOARD DATE:	        16 JUNE 2009

		DOCKET NUMBER:  AR20090001559 


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, that her discharge be upgraded.

2.  The applicant states that her separation for writing a bad check was racist.  She simply could not think straight.  Her head had been split open and she was given inadequate medical care.  She also states that she was not good at math and was at the bottom of her class.  [She encloses her high school transcript to substantiate this claim.]  She never knew her parents and was raised by her grandparents, who were farmers.  [She encloses her birth certificate to substantiate this fact.]  She worked in the fields and went to school when it was convenient.  She had no one to tell her that education was important.

3.  The applicant provides her own description of the incident and copies of a Department of Veterans Affairs decision, high school transcript, and birth certificate.

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, a high school graduate, enlisted and entered the Regular Army on 15 January 1979 with a morals waiver for shoplifting.  She completed training as a postal clerk, was stationed at Fort Leavenworth, Kansas, and was advanced to pay grade E-4 on 1 August 1980.

3.  She received the Army Good Conduct Medal for the period ending on 14 January 1982, reenlisted on 12 February 1982, and married a noncommissioned officer in May 1982.  In August and September 1982, she marginally achieved course standards at the Primary Leadership Development Course because of academic inability and failure to pass the physical fitness test. She was awarded an Army Achievement Medal for meritorious service in April 1983.  In May 1983 the applicant was stationed in Germany.

4.  A 4 March 1985 letter to the applicant with a copy to her commanding officer notified her that several checks written in January and February 1985 had been returned due to insufficient funds.

5.  An 11 March 1985 letter informed her commanding officer that the applicant had written several bad checks at the Top Five Club on 28 February 1985.

6.  On 20 March 1985, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for writing bad checks for $352.00 and $160.00 in November 1984.  The punishment consisted of reduction to pay grade E-1.  The applicant appealed and in a lengthy letter to the appeal authority admitted that she had knowingly written the bad checks but that she had done so because she had no money and was writing bad checks to try to cover the earlier ones.  She claimed that she had made good on the checks and asked that she be given another chance and not be reduced to the lowest pay grade.  The battalion commander denied her appeal.

7.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that on 10 June 1985 the applicant was separated under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, with an under other than honorable discharge for the good of the service in lieu of trial by court-martial.  None of the pertinent discharge processing documents are contained in the available record.

8.  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 discharge under other than honorable conditions is normally considered appropriate.

9.  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.

10.  There is no indication that the applicant applied to the Army Discharge Review Board during the 15-year period of eligibility.

11.  The high school transcript submitted by the applicant shows that she made straight D's in math classes and that she graduated 15th in a class of 18.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that she was not good in school and could not do even simple math.  She needed help managing a checkbook.

2.  Her admission at the time that she was writing one bad check to cover another indicates that poor math skills were not the reason for her misconduct.

3.  Although the discharge documentation is not of record, the evidence of record shows that the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant would have had to have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant would be required to consult with defense counsel and in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with her misconduct by knowingly and repeatedly writing bad checks.

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.

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)                                         AR20090001559



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ABCMR Record of Proceedings (cont)                                         AR20090001559



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