BOARD DATE:	  21 July 2009

		DOCKET NUMBER:  AR20090003100 


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 that his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was young when he was discharged and had no idea that he could fight the charge.  The applicant continues that he was given an other than honorable conditions discharge for rendering two worthless checks, valued at less than 75 dollars, which were returned for insufficient funds.  The applicant states that the checks were returned because his father had withdrawn money from the account without his knowledge.  Now, the applicant is seeking employment as a Deputy Sheriff and has been informed that he needs an honorable discharge in order to be hired.

3.  The applicant provides a self-authored statement as documentary evidence in support of this application.

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 record shows that he was born on 22 December 1970.  The applicant enlisted in the Regular Army on 13 February 1990, at the age of 19 years, 1 months, and 23 days.  He completed basic combat and advanced individual training (AIT).  Upon completion of advanced individual training, he was awarded the military occupational specialty 55B (Ammunition Specialist).  At the time of separation, the applicant held the rank of private (PVT)/pay grade E-1.

3.  The complete facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 (Certificate of Release or Discharge From Active Duty) that shows he was discharged on 30 September 1991 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial.  This form also shows he completed 1 year, 7 months, and 18 days of creditable active service during this period of enlistment.

4.  The applicant's DD Form 214 and an associated DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge From Active Duty), dated 16 June 1992, show he was awarded or authorized to wear the Army Service Ribbon, the National Defense Service Medal, the Overseas Service Ribbon, the Parachutist Badge, and the Southwest Asia Service Medal with one Bronze Service Star.

5.  There is no evidence in the available record that indicates the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

6.  The applicant provides a self-authored statement, dated 12 January 2009, which states the following:

	a.  The applicant states, in effect, that he started in the Reserve and then volunteered for active duty when Operation Desert Shield occurred.  He continued that he entered active duty and served his country well during Operation Desert Storm.  Following Desert Storm, he was stationed in Panama.  The applicant states that upon arrival at his new unit, he was instantly assigned as a squad leader and excelled in the unit.

	b.  After six months in the unit, the applicant was informed by his commander that he was receiving nonjudicial punishment under the provisions of Article 15 of the Uniform Code for Military Justice for rendering two checks without sufficient funds.  The applicant states that it was an innocent mistake because his father, who was a cosigner on his account, had taken 80 dollars from his checking account without notifying him.  The applicant continued that after he provided this explanation to his commander, his commander advised him that the matter would be decided before a court-martial.

	c.  The applicant states that when he consulted legal counsel, he was advised, "Look, it was an innocent mistake.  Just sign this plea agreement, there will be no court martial and you will go home with an other than honorable discharge.  If you don't sign this, it will go to court martial and if found guilty you could go to jail, get fined, and be dishonorably discharged."  The applicant continued that he did not want to go to jail, so he signed the plea agreement and was immediately sent home.  He also states that his first sergeant informed him that it was a political matter because he had written the checks to a Panamanian business and the Army had to look like it was enforcing the law.

	d.  The applicant states that he paid the two checks off as soon as he learned they had been returned.  He added that he feels his sentence was a bit harsh for a first time offense and having an otherwise great record.  The applicant further states that he was recognized as an outstanding trainee when he graduated from basic training and once again when he graduated from AIT.  He continues that he enjoyed Airborne School, Jungle Warfare School, and serving in Kuwait, where he received numerous awards.

	e.  The applicant concluded that his other than honorable conditions discharge has hampered his employment possibilities with numerous law enforcement agencies.  He also mentioned that he has considered reenlisting with the National Guard since he is fluent in four languages and feels that he would be an asset to any organization.

7.  Army Regulation 635-200 (Personnel Separations) 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.

8.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by upgrading his discharge under other than honorable conditions to an honorable discharge was carefully considered and determined to be without merit.

2.  The applicant's records show he was 19 years of age at the time of his enlistment and most likely 20 years of age at the time of his offense(s).  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation. 

3.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  By his own admission, the applicant received legal counsel and voluntarily elected to accept a discharge under the provisions of Chapter 10 of Army Regulation 635-200 in lieu of appearing before a trial by court-martial.

4.  Discharges under the provisions of chapter 10 of Army Regulation
635-200 require an admission of guilt to the offense(s) charged and the requests are voluntary requests for discharge in lieu of trial by court-martial.  Evidence shows the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial; therefore, Government regularity in-so-far as the discharge process must be presumed.  It appears 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 reflects his overall record of military service.


5.  Based on his 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 also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

6.  The applicant contends that his discharge under other than honorable conditions has hampered his employment opportunities.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment, employment benefits, or veteran's benefits.

7.  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.



      _______ _   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)                                         AR20090003100





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ABCMR Record of Proceedings (cont)                                         AR20090003100



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