IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100021878 


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 discharge under other than honorable conditions (UOTHC) be upgraded.

2.  The applicant states he failed to show up for work for 4 days.  This is not a serious offense warranting a UOTHC discharge.

3.  The applicant provides no additional evidence.

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 on 27 August 1980 and reenlisted on 19 July 1984.

3.  On 27 August 1985, the applicant was cited for false swearing and a traffic accident involving personal injury and destruction of private property that occurred on 21 July 1985.

4.  He received NJP during this term of enlistment as follows:

* 26 October 1986, for intentionally missing movement
* 7 August 1986, for 1 day of absence without leave (AWOL)
* 20 January 1987, for intentionally missing movement

5.  On 4 August 1986, the U.S. Army Criminal Investigation Command (CID) commenced an investigation of the applicant for larceny and attempted fraud.  The crux of the investigation surrounded his negotiation of eight worthless checks totaling $165.98 and attempt to negotiate a worthless check in the amount of $1,409.00.  CID, in consultation with the Staff Judge Advocate, found there was sufficient evidence to charge the applicant with larceny and attempting to obtain services under false pretenses.  During the investigation, CID was advised that the applicant was AWOL on 5 August 1986, 8 August 1986, and 12 August 1986.

6.  The applicant was charged with being AWOL 8-21 August 1986.  His AWOL ended as a result of apprehension by military police while he was attempting to negotiate an additional worthless check.

7.  The applicant also received negative counseling statements on seven occasions for training weaknesses, missing physical fitness training formation, missing morning formation, intentionally missing movement, negotiation of numerous worthless checks, letters of indebtedness, and being AWOL.

8.  On 10 February 1987, the applicant was notified of the proposed separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12, for misconduct (commission of a serious offense) for larceny, utterance of numerous worthless checks, attempts to obtain services under false pretenses, and AWOL.

9.  On 27 March 1987, the discharge authority approved the discharge action and directed the applicant be reduced to the lowest enlisted grade and separated with a UOTHC discharge.

10.  On 3 March 1987, the applicant was separated with a UOTHC discharge under Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).

11.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.

	a.  Paragraph 3-7a states an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty.

	b.  Paragraph 3-7a(2) states:  "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Article 15…It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."

	c.  Paragraph 3-7b states a general discharge is a separation under honorable conditions issued to a Soldier whose military record is satisfactory but not so meritorious as to warrant an honorable discharge.

	d.  Paragraph 3-7c states a UOTHC discharge is issued when there is one or more act(s) or omissions that constitute a significant departure from conduct expected of a Soldier.

	e.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specifically, paragraph 14-12c is for a pattern of misconduct, commission of a serious offense, conviction by civil authorities, AWOL, or other actions that authorize a punitive discharge under the UCMJ.  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 UOTHC is normally appropriate for a Soldier discharged under this chapter.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he failed to show up for work for 4 days.  This does not constitute a serious offense warranting a UOTHC.

2.  The applicant was AWOL for at least 14 days and possibly 4 additional days, he failed to report for three mandatory formations, he intentionally missed movement twice, he issued at least 17 worthless checks, he received NJP on four occasions, and he had potential charges pending for larceny and attempting to obtain services under false pretenses.

3.  The applicant, in fact, was not discharged for missing work four times, but clearly for a pattern of misconduct (commission of a serious offense).

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

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 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)                                         AR20100021878



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ABCMR Record of Proceedings (cont)                                         AR20100021878



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