IN THE CASE OF:
BOARD DATE: 26 January 2010
DOCKET NUMBER: AR20090013154
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 his reduction in rank be voided.
2. The applicant states that his reduction in rank from specialist five/pay grade E-5 to private first class/pay grade E-3 was too harsh. He contends that he was reduced in rank for writing a check to his wife in the amount of $66.00 so she could eat while he was out at sea. He had no contact with the outside world and had no way of knowing his account balance.
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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. On 5 August 1964, the applicant enlisted in the Regular Army for 3 years. He completed his initial training and was awarded military occupational specialty 94B (Cook).
3. On 6 August 1965, the applicant reenlisted for a period of 6 years in the Regular Army.
4. On 13 September 1967, the applicant was promoted to specialist five/pay grade E-5.
5. On 9 September 1971, the applicant was convicted by special court-martial of violation of Article 123a, Uniform Code of Military Justice (UCMJ), for six specifications of uttering checks with the intent to defraud and for the wrongful procurement of lawful currency. His sentence consisted of a reduction to pay grade E-3 and a forfeiture of $100.00 pay per month for 1 month. The dollar amount of his checks is not in the available records.
6. On 18 October 1971, the applicant was released from active duty due to the expiration of his term of active duty service. He was transferred to the U.S. Army Reserve Control Group (Reinforcement). He had completed 7 years, 2 months, and 14 days of creditable active duty service. His service was characterized as honorable.
7. Under the UCMJ, in effect at the time, the maximum punishment allowed for violation of Article 123a for uttering worthless checks in amounts between $50.00 and $100.00 with the intent to defraud was a punitive discharge and confinement for 1 year.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his reduction in rank was too harsh a punishment for writing worthless checks.
2. The evidence of record clearly shows that the applicant was convicted by a special court-martial for six specifications of uttering worthless checks for which he could have been confined for 1 year and punitively discharged. However, he was reduced in rank and permitted to remain on active duty. Subsequently, he was transferred to the U.S. Army Reserve with an honorable characterization of service.
3. In view of the above, it is clear that his punishment was not too harsh for his misconduct. Therefore, his request should be denied.
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) AR20090013154
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090013154
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2012 | 20120003887
a. Paragraph 1-5a stated a commissioned or warrant officer would normally be furnished an Honorable Discharge Certificate unless conditions existed as indicated in paragraphs 1-5b and 1-5c, or as directed by the Secretary of the Army. b. Paragraph 1-5b stated a general discharge under honorable conditions was applicable in cases of unqualified resignation in circumstances involving serious misconduct; discharge because of serious misconduct, including misconduct for which punishment has...
ARMY | BCMR | CY2009 | 20090021686
The applicant requests upgrade of his bad conduct discharge to an honorable or general discharge. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. The applicant's request to have his bad conduct discharge upgraded to an honorable or a general discharge because his punishment was too harsh was carefully considered; however, there is insufficient evidence to grant relief.
ARMY | BCMR | CY2012 | 20120008035
d. The investigating officer recommended considering several administrative actions to be taken against the applicant singly or in combination: * counsel him pursuant to Army Regulation 600-15 (Indebtedness of Military Personnel) * order him into the barracks to alleviate financial obligations * permanently revoke his security clearance * impose a bar to reenlistment on him * process him for removal from the sergeant first class (SFC)/E-7 promotion list * place a Letter of Reprimand in his...
USMC | DRB | 2002_Marine | MD02-00306
PART I - APPLICANT’S ISSUES AND DOCUMENTATION This ended with brig time and a Bad Conduct Discharge. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was involuntarily separated on 870204 with a bad conduct discharge which was the sentence adjudged by a properly constituted special court martial that was determined to be legal and proper, affirmed in the legal chain of review and executed (A and B).
NAVY | DRB | 2006_Navy | ND0600165
ND06-00165 Applicant’s Request The application for discharge review was received on 20051103. After returning from treatment, the member states she did not gamble at all for nearly 9 months, and then in July 01, she began to gamble excessively again. Relief denied.The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.
USMC | DRB | 2002_Marine | MD02-00734
MD02-00734 Applicant’s Request The application for discharge review, received 020425, requested that the characterization of service on the discharge be changed to general/under honorable conditions. Specification 9: Unauthorized absence from remedial PT on 891031.Violation of UCMJ, Article 92:Specification: Derelict in duties in scoring only 45 points on a PFT on 891027.Awarded forfeiture of $391.00 per month for 2 months, restriction and extra duties for 45 days, reduction to PFC. ...
NAVY | DRB | 2005_Navy | ND0500675
The Applicant requests the characterization of service received at the time of discharge be changed to honorable. No indication of appeal in the record.031124: Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct commission of a serious offense.031124: Applicant advised of rights and having elected not to consult with counsel...
USMC | DRB | 1999_Marine | MD99-00930
MD99-00930 Applicant’s Request The application for discharge review, received 990630, requested that the characterization of service on the discharge be changed to honorable. History Iwas accused and convicted, at Office Hours, of Article 123a - Making, drawing, or uttering check, draft, or order without sufficient funds.While serving my punishment two (2) days later, I was charged with Article 90 - Willfully disobeying an order. Not appealed.910919: NJP for violation of UCMJ, Article 90:...
AF | DRB | CY2002 | FD2002-0156
CASE NUMBER AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE GENERAL: The applicant appeals for upgrade of discharge to Honorable. Applicant was discharged for misconduct, commission of a serious offense. In his written statement, AB aga@i¥requests that he not be discharged from the Air Force or if he is discharged, then he asks that he receive an honorable discharge.
USMC | DRB | 2001_Marine | MD01-00158
MD01-00158 Applicant’s Request The application for discharge review, received 001121, requested that the characterization of service on the discharge be changed to Honorable. 940830: Applicant's counsel submitted a letter to the commanding general requesting that the applicant's request for separation in lieu of trial by courts-martial be approved and that characterization of service be under Honorable conditions (General). You should read Enclosure (5) of the Directive before submitting...