IN THE CASE OF:	  

		BOARD DATE:	  	       30 July 2009

		DOCKET NUMBER:  AR20090004559 


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 under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states he believes the discharge was inequitable in view of the fact that it was based on one isolated incident during his nearly 29 months of service.

3.  The applicant states, in effect, that he was an authorized user of the account from which he withdrew funds which ultimately led to the charges which served as the basis for his discharge.  He states that while he accepts full responsibility for his actions he maintains no laws were broken and that under the terms of the agreement as outlined in the Deposit Agreement supplied by the First National Bank of Fort Hood, Texas, he was “fully within my legal rights to access all available funds in the said account.”  He states that he agrees that the manner in which he obtained the funds may be construed as questionable and suspicious; however, he reiterated that no military or civil laws were broken and states that all funds were returned.  

4.  The applicant states that when he was being questioned regarding the money he withdrew from his roommate’s bank account, he told the investigating officer that he was an authorized user of the account.  However, the applicant states that information was dismissed and/or ignored by the investigating officer.  He admits that he was scared, young, and had never been in trouble before and as 

such his fear of the situation led him to follow the advice of his assigned counsel to request discharge, a decision he has regretted for years.

5.  The applicant maintains that if he had been more knowledgeable and comfortable with the facts of the incident and had the support of proper counsel he would have been cleared of all charges during any trial primarily due to his overwhelming belief that as an authorized user of the account he did not break any laws and had full legal access to the account.

6.  The applicant also notes that in the years since his discharge he has not had any legal issues whatsoever, outside of minor traffic violations.  He states he has maintained gainful employment, completed his education, and had served approximately 90 percent of his enlistment without any disciplinary action.  He states that it is painful for him to realize that he has the negative stigma that can follow a person with an under other than honorable conditions discharge when he was only 3 weeks away from his scheduled separation date.

7.  The applicant provides:

   a.  a copy of a bank signature card showing him as an authorized agent on another Soldier’s (Private R_____ B____) bank account at the First National Bank;
   
b.  a copy of the First National Bank’s Deposit Agreement on which the 
applicant highlighted the portion indicating that an “agent” is essentially authorized to sign checks, endorse checks for deposit, receive information about the account, to cash checks drawn on the account, to sign any document in connection with the account and to “dispose of and deal with the account as freely and fully as you might do in person.”  

c.  a letter dated 2 February 1994 from the bank in question informing Private 
B____ (the account owner) that they were not going to refund the withdrawn funds because it was their understanding that the applicant had made restitution of “$60.00 of the $90.00 taken,” that because the applicant was “on the account” it could not be considered an unauthorized claim and would be a civil matter between the applicant and Private B____.

d.  a 4 February 1994 statement indicating that he had repaid the $90.00 he 
had “borrowed” from Private B____’s bank account;

e.  four statements of support, all dated in March 1994, attesting to the 
applicant’s character; 

f.  education transcripts documenting the applicant's civilian education 
subsequent to his discharge; and

g.  a 2006 background investigation which shows that criminal searches in 
Indiana and Texas were “clear.”

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.  Records available to the Board indicate the applicant entered active duty as a Regular Army (RA) enlisted Soldier on 26 November 1991, one month shy of turning 19 years of age.  In May 1992, following completion of training as a medical corpsman, he was assigned to Fort Hood.  By November 1992 he had been advanced to pay grade E-3.  In November 1993 he was awarded an Army Achievement Medal for exceptional performance of duty between 17 September and 25 October 1993 during a National Training Center rotation.

3.  According to a document provided by the applicant, and contained in his Official Military Personnel File (OMPF), the applicant signed a bank “signature card” on 7 September 1993 identifying him as an “authorized agent” on Private B____’s bank account.

4.  On 19 February 1994 court-martial charges were preferred against the applicant for wrongfully appropriating an ATM (Automated Teller Machine) card from Private B____ and then stealing $90.00 from him.  The specific charges were:

	a.  wrongful appropriation of an ATM card and larceny of $90.00 (Article 121); and

	b.  conspiracy (Article 81).

5.  In a statement made as part of the investigation leading to the court-martial charges the applicant indicated that he took Private B____’s ATM card and with another Soldier proceeded to an ATM where the other Soldier withdrew $90.00 from Private B____’s account.  When asked why he stole Private B____’s ATM card the applicant responded “extra money.”  The applicant stated that Private B____ did not give him permission to use that card and that he (the applicant) and the other Soldier used the funds to eat out and go to the movies.

6.  On 4 March 1994, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (in lieu of trial by court-martial).  In doing so, he acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Department of Veteran Affairs.  

7.  In a statement submitted on his own behalf, the applicant asked that he receive a general discharge, rather than a discharge under other than honorable conditions.  He acknowledged that what he did was wrong but in his defense he noted that he was an authorized agent on Private B____’s bank account and as such could not have committed larceny.  He submitted the same documents to the separation approval authority for consideration that he submitted to this Board in support of his request, including the four statements attesting to his good character and work ethic.  He stated that he had a wife and was concerned about the ability to collect unemployment following his discharge if he received less than a general discharge.

8.  The applicant’s defense counsel also submitted a statement supporting the applicant’s petition for a general discharge noting that his offense was not so heinous as to demand an under other than honorable conditions discharge.  He noted the applicant’s service showed he worked hard for the Army for almost all of his enlistment, that he was a husband and father, and cited his previous awards, including an Army Achievement Medal, and certificates as evidence of the quality of his service.  The defense counsel also noted the applicant was an authorized agent of the account in question and that accordingly he had the “legal right to access of the account, the funds in it, and the records for the account.”

9.  In a 14 March 1994 statement to the separation authority, the Staff Judge Advocate at Fort Hood, noted the applicant took the ATM card while Private 
B____ was taking a shower and had previously learned the PIN (Personal Identification Number) by watching Private B____ withdraw funds from the ATM machine on several occasions.

10.  The appropriate separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued. 

11.  The applicant was discharged on 22 April 1994, under the provisions of Army Regulation 635-200, chapter 10 with his service characterized as under other than honorable conditions.  He was credited with completing of 2 years,
4 months, and 27 days of active Federal service.

12.  The Table of Maximum Punishment notes that for a charge of larceny of less than $100.00 the individual could receive a Bad Conduct Discharge, total forfeiture of pay, and 6 months confinement.  The conspiracy charge carried a maximum punishment of 3 months confinement and with 2/3rd forfeiture of pay for 3 months.  The conspiracy charge carried the same punishment as the larceny charge.

13.  In 1996 the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the basic authority for 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, 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 is normally considered appropriate.  However, the separation authority may direct a general discharge certificate, if such is merited by the member’s overall record during the currently enlistment.

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

16.  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.  Whether the applicant was an authorized agent of the bank account or not is really not the issue.  The fact of the matter is that the applicant took his roommate’s ATM card and used it to withdraw funds without his knowledge.  The applicant clearly violated the trust of his roommate and the applicant himself admits this was wrong.

2.  The issue could have been taken to a court-marital if the applicant, members of his chain of command, and legal advisor thought the applicant’s argument that he was authorized access to the account excused his behavior.  Rather the applicant, by voluntarily requesting discharge rather than face the possible outcome of a court-martial, admitted his guilt and as such was administratively discharged.  He knew the consequences of an under other than honorable conditions discharge.  Considering that the applicant could have received a bad conduct discharge had he gone to a court-martial, his discharge under other than honorable conditions was not unduly harsh.

3.  The applicant's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and there is no indication of procedural errors that would have jeopardized his rights.

4.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for changing properly assigned entries and codes from a previous period of military service.

5.  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 the aforementioned 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)                                         AR20090004559



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ABCMR Record of Proceedings (cont)                                         AR20090004559



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