IN THE CASE OF:	

		BOARD DATE:	20 August 2009  

		DOCKET NUMBER:  AR20090005193 


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 general, under honorable conditions discharge to honorable.

2.  The applicant states, in effect, that his wife wrote 3 or 4 bad checks against their checking account with insufficient funds.  A senior noncommissioned officer wrote down every check number that was missing from their checkbook as bad checks.  The applicant states that he took care of all the bad checks that were written.  He further states that he is trying to get a good paying union job, but the union requires an honorable discharge before they will hire him.  If his discharge is upgraded, he will get the job and have benefits.  He is currently struggling financially. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 19 April 1988 and a self-authored statement in support of his 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 enlisted in the Regular Army (RA) on 5 March 1987 for a
3-year period of service.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 71D (legal specialist).

3.  On 17 September 1987, the applicant was assigned to Headquarters and Headquarters Company, 15th Engineer Battalion at Fort Lewis, WA.

4.  The applicant received numerous formal counseling statements from his senior noncommissioned officers.  The counseling statements show the applicant consistently wrote bad checks knowing that he had insufficient funds in his bank checking account to cover payment of his debts.  He was behind on his car loan note and rental furniture payments with these firms contacting the applicant's company commander and first sergeant requesting their assistance to ensure that the applicant paid his outstanding debts.

5.  On 6 April 1988, the applicant received a mental status evaluation by reason of being considered for discharge.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible and he had the mental capacity to understand and participate in discharge proceedings.

6.  On 8 April 1988, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failure to maintain sufficient funds in his bank checking account to cover checks written against the account during the periods 21 February 1988 to 27 February, 19 March 1988 to 22 March 1988, and between 23 February 1988 to 5 April 1988.

7.  On 8 April 1988, the applicant's commander notified him that he was initiating action to discharge him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to his commission of a serious offense that was punishable under the UCMJ which rendered him unsuitable for continued military service.  The commander informed the applicant that he was recommending he receive a general, under honorable conditions discharge.  
8.  The company commander advised the applicant of his right to submit statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting his proposed separation, and to consult with counsel or civilian counsel at no expense to the Government within a reasonable period.  The commander further advised the applicant that he could waive any of these rights in writing and he could withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.  

9.  On 8 April 1988, the applicant consulted with legal counsel and he was advised of his contemplated separation.  He was advised that he could receive a general, under honorable conditions discharge.   The applicant indicated that he would make a statement in his own behalf; however, no such statement was available with the separation packet.  He also indicated that he understood the possible effects of a general, under honorable conditions discharge and of the procedures and rights that were available to him.

10.  The applicant indicated that he understood that he could encounter substantial prejudice in civilian life with a general discharge.  He further indicated he understood that his separation under honorable conditions could deprive him of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a Veteran under both Federal and state laws

11.  On 13 April 1988, applicant's commander recommended him for discharge due to misconduct - commission of a serious offense.  The commander stated the applicant had shown a pattern of misconduct, failed to respond to counseling, was unsuitable for further military service, and that his conduct was prejudicial to the good order and discipline of the Army.  The commander recommended that the applicant's service be characterized as under honorable conditions.  The commander also recommended a waiver of the rehabilitative transfer requirement.

12.  On 13 April 1988, the appropriate authority approved the applicant's discharge because of a commission of a serious offense.  He waived the requirement for a rehabilitative transfer and directed the applicant receive a General Discharge Certificate.

13.  On 19 April 1988, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 for misconduct - commission of a serious offense.  He had completed 1 year, 1 month, and 15 days of net active service that was characterized as general, under honorable conditions. 

14.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

16.  Army Regulation 635-200 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded so he can seek better employment.  

2.  Evidence shows that the applicant was equitably and properly discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  The applicant's pattern of misconduct, writing checks with insufficient funds in his bank account, continued after receiving numerous documented formal counseling sessions.  Personal financial mismanagement and indebtedness generally does not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  The ABCMR does not upgrade properly issued discharges solely for establishing eligibility for other programs or benefits. 

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 that requirement.

6.  Based on all of the foregoing, there is insufficient basis to upgrade the applicant's 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.



      ___________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)                                         AR20090005193



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ABCMR Record of Proceedings (cont)                                         AR20090005193



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