BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090009334 


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 her discharge under other than honorable conditions be upgraded.

2.  The applicant states that she had nonjudicial punishment (NJP) imposed against her, was reduced in rank, and was removed from the service for writing bad checks.  She states that she was a good Soldier who did not know how to handle money and budget so that she and her daughter could survive between pay periods.  She states that she realizes that it was wrong to write the checks, but at the same time she was just trying to get by the best that she could.  She states that she did not deserve the harshest punishment; however, she believes that she received such harsh punishment because she was one of the few females who did not and would not sleep with her platoon sergeant.  She states that she was made an example of what could and would happen.  She was discharged under other than honorable conditions for writing bad checks, which in turn placed her and her daughter in a serious bind.  She states that since her discharge she has attended college, received a degree, and become a productive citizen.  She states that she is a volunteer and active church member.  She states that she holds no grudges and that she would serve in the Army again; however, she would counsel younger Soldiers about sexual harassment and what the consequences could be, especially if they are having financial problems.

3.  The applicant provides no additional documentation in support of her 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.  On 31 August 1981, the applicant enlisted in the Regular Army (RA) in Butte, Montana, for 3 years in the pay grade of E-2.  She successfully completed her training as a multichannel communications equipment operator.  She was promoted through the ranks to the pay grade of E-5.  She reenlisted in the RA for 6 years on 19 July 1984.

3.  On 25 January 1985, a bar to reenlistment was initiated against her for making, drawing, or uttering a check, draft, or other without sufficient funds.  According to the information contained in the bar to reenlistment, she had NJP imposed against her for uttering bad checks, she was counseled twice for writing bad checks, and on 28 December 1983 she was notified that her check cashing privileges were suspended due to dishonored checks.  The information contained in the bar shows that there had been four warrants for the applicant’s arrest since 28 December 1983 for writing bad checks and that, although her duty performance was satisfactory, her inability to manage her personal affairs demonstrated that she did not possess the attributes required of a noncommissioned officer or a professional Soldier.  The applicant's bar to reenlistment was approved on 15 February 1985.

4.  On 3 September 1985, NJP was imposed against the applicant for willfully and unlawfully drawing with intent to defraud a certain check upon the Fort Knox National Bank.  Her punishment consisted of a reduction in pay grade, restriction, and extra duty.

5.  On 23 September 1985, the applicant was notified that she was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct.  The commander cited the two NJPs that were imposed against her for uttering bad checks without sufficient funds as the basis for his recommendation.  She acknowledged receipt of the notification on 7 October 1985 and after consulting with counsel she waived her rights and she elected not submit a statement in her own behalf.

6.  The appropriate authority approved the recommendation for discharge on 22 November 1985 and directed the issuance of a discharge under other than honorable conditions.  Accordingly, on 17 December 1985 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct - commission of a serious offense.  She had completed 4 years, 3 months, and 17 days.

7.  A review of the available records does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations.

8.  Army Regulation 635-200 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, convictions by civil authorities, desertion, or absence without leave.  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 considered appropriate.

9.  Paragraph 3-7a of 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.

10.  Paragraph 3-7b of Army Regulation 635-200 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 her discharge should be upgraded.

2.  Her contentions have been noted.  However, the type of discharge that she received was proper considering all the facts of the case.
3.  The applicant’s records show that she was counseled, she had NJP imposed against her, and she had warrants for her arrest as a result uttering bad checks.  There is no evidence nor has she submitted any evidence to support her contentions that she was sexually harassed and made to be an example because she refused sexual advancements by her platoon sergeant.

4.  The applicant’s records indicate that she was given numerous opportunities to get her financial situation under control and yet she continued to utter bad checks.  Considering her numerous acts of indiscipline, it does not appear that her discharge under other than honorable conditions was too harsh.

5.  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)                                         AR20090009334



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ABCMR Record of Proceedings (cont)                                         AR20090009334



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