IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120001217 


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:

	a.  an upgrade of his general discharge under other than honorable conditions to honorable and

	b.  correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was awarded or authorized the Army Achievement Medal (AAM) and the Armed Forces Expeditionary Medal (AFEM) for Operation Just Cause.

2.  The applicant states he was discharged due to two dishonored checks written by his former spouse who had a power of attorney.  He understood he was responsible for the checks.  He feels the character of his discharge was punitive in view of the nature of the offense and his service in support of Operation Just Cause and Operations Desert Shield/Desert Storm.

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.  Having prior enlisted service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 1 November 1988.

3.  On 31 March 1990, the Fort Bragg Main Exchange issued the applicant a second notice that his check in the amount of $20.60, dated 4 March 1990, was returned for nonsufficient funds.

4.  On 4 April 1990, the Fort Bragg Main Exchange issued the applicant a notice that his check in the amount of $27.05, dated 5 March 1990, was returned for nonsufficient funds.

5.  On 18 April 1990, nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) was imposed against the applicant for uttering checks to the Army and Air Force Exchange Service in the amount of $47.65 on or about 4 and 5 March 1990 and dishonorably failing to maintain sufficient funds for payment of such checks.

6.  On 4 January 1991, the applicant's company commander recommended him for award of the Army Achievement Medal for meritorious achievement during the period 20 November 1990 through 2 January 1991 while serving as the acting supply sergeant during Operation Desert Shield.  On 13 January 1991, the applicant's brigade commander downgraded the award to a Department of the Army Certificate of Achievement.

7.  On 2 January 1992, the Fort Bragg Main Exchange issued the applicant a notice that his check in the amount of $38.00, dated 21 January 1992, was returned for nonsufficient funds.

8.  On 31 January 1992, the applicant's battalion commander imposed a bar to reenlistment against him citing his receipt of NJP for issuing bad checks, nonpayment of his just debts, failing inspection, failing to report, failing to meet division physical fitness standards, failing to follow instructions, lacking motivation, being disorderly, disrespecting an officer, sleeping on guard duty, and losing accountability of a 9-milimeter pistol.  The applicant acknowledged receipt of the bar to reenlistment on the same date and indicated he would not appeal the bar.

9.  On 11 February 1992, NJP under the provisions of Article 15 of the UCMJ was imposed against the applicant for uttering a check to the Army and Air Force Exchange Service in the amount of $38.00 on or about 2 January 1992 and dishonorably failing to maintain sufficient funds for payment of such check.

10.  On 5 March 1992, the applicant's company commander notified him of his intent to initiate separation action against him for commission of a serious offense.  He stated the applicant received a company-grade Article 15 on 18 April 1990 for issuing bad checks and another Article 15 on 5 February 1992 for issuing bad checks as the reasons for his proposed action.  He also stated the applicant had received numerous negative counseling statements.  He informed him that he was recommending a general discharge.  He advised him of his right to consult with counsel and/or civilian counsel at no expense to the government and the right to submit a written statement in his own behalf.

11.  On 5 March 1992, the applicant acknowledged receipt of the proposed separation action.

12.  On or about 5 March 1992, the applicant's company commander initiated a recommendation for his discharge under the provisions of Army Regulation 
635-200 (Personnel Separations), paragraph 14-12c, for commission of a serious offense.  As specific reasons for the recommended action, he stated the applicant received a company-grade Article 15 on 18 April 1990 for issuing bad checks and another Article 15 on 5 February 1992 for issuing bad checks.  He stated the applicant has shown he cannot be a productive member of the Army.

13.  On 8 March 1992, the applicant submitted a request for a conditional waiver in which he stated he had been advised by his consulting counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200, chapter 14, and its effects, the rights available to him, and the effect of any action taken by him in waiving his rights.  He voluntarily waived consideration of his case by an administrative separation board.  He indicated he was not submitting statements in his own behalf, he was making the request of his own free will, and he was not subjected to any coercion whatsoever by any person.  He understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He further understood he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He understood he could apply to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading if he received a character of service which was less than honorable; however, he realized that an act of consideration by either board did not imply that his discharge would be upgraded.

14.  On 17 March 1992, the applicant's brigade commander approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense and directed the issuance of a General Discharge Certificate.

15.  He was discharged under other than honorable conditions on 26 March 1992 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.

16.  Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record) shows his overseas service in Saudi Arabia from 31 March 1990 through 2 April 1991.  It does not show service in Panama in support of Operation Just Cause.

17.  Item 35 (Record of Assignments) of his DA Form 2-1 does not show service in Panama in support of Operation Just Cause.

18.  His DA Form 2-1 shows he was awarded or authorized the Army Service Ribbon, Parachutist Badge, National Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Achievement Medal, Southwest Asia Service Medal with two bronze service stars, and Kuwait Liberation Medal (Saudi Arabia).  It does not show the Armed Forces Expeditionary Medal as an authorized award.

19.  His DD Form 214 shows he was awarded or authorized the Army Service Ribbon, National Defense Service Medal, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Parachutist Badge, Noncommissioned Officer Professional Development Ribbon, Southwest Asia Service Medal with two bronze service stars, and Kuwait Liberation Medal (Saudi Arabia).  It does not show the Army Achievement Medal or Armed Forces Expeditionary Medal as authorized awards.

20.  His DD Form 214 also shows his service in Southwest Asia from 31 August 1990 through 2 April 1991.  It does not show service in Panama in support of Operation Just Cause.

21.  There is no evidence to show the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

22.  Army Regulation 635-200, chapter 14, establishes policy and prescribes procedures for separating personnel for misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

23.  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.

24.  Army Regulation 635-200, 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.

25.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.

	a.  The AAM is awarded to members of the Armed Forces of the United States who, on or after 1 August 1981, distinguished themselves by meritorious service or achievement.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	b.  The AFEM is awarded for qualifying service after 1 July 1958 in U.S. military operations, U.S. operations in direct support of the United Nations, and U.S. operations of assistance for friendly foreign nations.  Qualifying service for this award includes participation in Panama in support of Operation Just Cause from 20 December 1989 through 31 January 1990.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to honorable in view of the nature of the offense (two dishonored checks written by his former spouse who had a power of attorney) and his service in support of Operation Just Cause and Operations Desert Shield/Desert Storm was carefully considered.

2.  There is no evidence of record and the applicant provided no evidence to show the checks were written by his former spouse.  The applicant's record does show he accepted NJP on two separate occasions for uttering three insufficient checks to the Army and Air Force Exchange Service.  His record also shows he was counseled on numerous occasions for a variety of reasons, to include issuing bad checks, nonpayment of his just debts, failing inspection, failing to report, failing to meet division physical fitness standards, failing to follow instructions, lacking motivation, being disorderly, disrespecting an officer, sleeping on guard duty, and losing accountability of a 9-milimeter pistol.

3.  The evidence of record shows the applicant displayed a pattern of misconduct ranging from issuing bad checks to dereliction of duties.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

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

5.  The applicant's contention that his DD Form 214 should be corrected to show he was awarded or authorized the AAM and AFEM for Operation Just Cause was also carefully considered.

6.  Although his DA Form 2-1 shows he was awarded an AAM, his record contains a DA Form 638-1 that shows the recommendation for award of the AAM was downgraded to award of a Department of the Army Certificate of Achievement.  In the absence of orders, the entry on his DA Form 2-1 is insufficient in and of itself to amend his DD Form 214 to show award of the AAM.

7.  His record contains no evidence showing he served in Panama in support of Operation Just Cause between 20 December 1989 and 31 January 1990.  Therefore, there is insufficient evidence to amend his DD Form 214 to show award of the AFEM.

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)                                         AR20120001217



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ABCMR Record of Proceedings (cont)                                         AR20120001217



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