BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110007969 


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 discharge to an honorable discharge.

2.  The applicant states since his discharge, there have been no further instances of poor judgment.  He also states an upgrade of his discharge would assist him in gaining respect from the family members he is trying to influence to enlist.

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 25 March 1987.  He completed basic combat and advanced individual training in military occupational specialty 13M (Multiple Launch Rocket System Crewmember).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  However, he held the rank/grade of private (PVT)/E-1 at the time of separation.

3.  On 2 February 1988, charges were referred against the applicant for:

* unlawfully making three checks totaling $85.00, from 27 November to     28 November 1987, without having sufficient funds in or credit with the bank for payment of said checks
* unlawfully making 13 checks totaling $670.00, from 5 December through 22 December 1987, without having sufficient funds in or credit with the bank for payment of said checks

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 10 February 1988 for failing to appear at his appointed time and place (check cashing class) on      6 February 1988.

5.  Evidence shows that on 22 February 1988, the applicant pled guilty and was found guilty at a summary court-martial of two specifications of violating Article 123a of the UCMJ by drawing checks without funds.  On 22 February 1988, the following sentence was adjudged:  to be reduced to rank/grade PVT/E-1, forfeit $447.00 pay for one month, and be confined for 30 days.  The sentence was approved on 2 March 1988.

6.  On 25 April 1988, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  

7.  On 26 April 1988, the applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, the possible effects if a general discharge were issued to him, and of the rights available to him. 

8.  On 27 April 1988, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of a general discharge.

9.  On 25 May 1988, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of chapter 13, Army Regulation 635-200, by reason of unsatisfactory performance.  He completed 1 year, 1 month, and
5 days of active military service during this period with 24 days of time lost.

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

11.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or general, under honorable conditions.

12.  Army Regulation 635-200, paragraph 3-7a 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his general discharge to an honorable discharge was carefully considered and determined to be without merit.

2.  The record shows he pled guilty and was found guilty at a summary court-martial of two specifications of violating Article 123a of the UCMJ by drawing checks without funds.  

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable 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)                                         AR20110007969



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ABCMR Record of Proceedings (cont)                                         AR20110007969



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