IN THE CASE OF:	  

		BOARD DATE:	   13 July 2010

		DOCKET NUMBER:  AR20090021688 


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 under other than honorable conditions (UOTHC) discharge to a general discharge.

2.  The applicant states he was young and did a lot of things for which he is ashamed.  However, he has turned over a new leaf and needs assistance from the Department of Veterans Affairs.

3.  The applicant does not provide any additional documents.

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 military records show that he enlisted in the Regular Army on 15 May 1979 at age 28.  He was awarded the military occupational specialty of light wheel vehicle/power generation mechanic.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on four occasions for being drunk and disorderly and for four instances of being absent without leave.

4.  The applicant was convicted by civil authorities for numerous instances of writing bad checks.  The applicant was ultimately confined by civil authorities on 11 November 1980.

5.  On 21 October 1980, the applicant was notified by his commander of his intent to recommend his discharge due to misconduct, other acts or patterns of misconduct, and of his rights in conjunction with that recommendation.  The applicant requested counsel be appointed to assist him and requested a personal appearance before a board of officers.

6.  On 24 October 1980, the applicant's commander forwarded a recommendation to discharge the applicant.  In that letter, his commander stated the applicant had passed 22 to 25 bad checks to both military and civilian outlets totaling approximately $1,200.00 to $1,500.00.  His commander also mentioned two of the applicant's four NJP's and the fact that the applicant had requested a personal appearance before a board of officers.  On 19 February 1981, the applicant waived his right to counsel and his right to an administrative board.

7.  The recommendation was approved by the appropriate authority.  Accordingly, on 10 March 1981 the applicant was discharged UOTHC under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct for frequent incidents of discreditable nature with civil and military authorities/established pattern showing dishonorable failure to pay just debts.  He was 30 years old at that time.

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 a pattern of misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Paragraph 1-18 specifies that Soldiers being considered for separation under the provisions of chapter 14 are entitled to have a board of officers consider their cases unless that right is waived.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 was 28 years old when he enlisted and was 30 years old when he was discharged.  As such, his contention that he was young is not accepted.

2.  While the applicant's desire to use Department of Veterans Affairs' benefits is understandable, the Board does not change a properly-constituted record for the sole purpose of establishing entitlement to benefits from another agency.

3.  The applicant accepted NJP on four occasions and had written 22 to 25 bad checks to both military and civilian outlets totaling approximately $1,200.00 to $1,500.00.  Such misconduct certainly warranted a UOTHC discharge.

4.  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)                                         AR20090021688



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ABCMR Record of Proceedings (cont)                                         AR20090021688



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