IN THE CASE OF:	  

		BOARD DATE:	  31 July 2012

		DOCKET NUMBER:  AR20120001531 


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 discharge to an honorable discharge and restoration of his grade.

2.  The applicant states he was reduced from sergeant (E-5) to private (E-1) and discharged because his wife was writing bad checks without his knowledge.

	a.  His wife had a boyfriend who was also a Soldier.  On one particular day while his unit at Fort Campbell, Kentucky was in lock-down, he went home and found the Soldier at his house with his wife.  He got into an argument with the Soldier and received a black eye.

	b.  Prior to being assigned to Fort Campbell, he served as a motor sergeant at Fort Devens, Massachusetts.  Someone stole some tools from the warehouse and he was blamed.  He adds that incident contributed to his discharge.

	c.  He states he received numerous awards and two honorable discharges prior to being discharged in 1977.

	d.  He also states that his company commander was prejudiced and lied to him about the character of service he would receive due to a discharge based on misconduct.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).
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 was inducted in the Army of the United States (AUS) on 15 April 1969.  He was awarded military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).

3.  He served in the Republic of Vietnam from 25 September 1969 through 
23 September 1970.

4.  A DD Form 214 shows the applicant was honorably discharged on 23 March 1971 to enlist in the Regular Army (RA).  He completed 1 year, 11 months, and
5 days of net active service this period.

5.  A DD Form 214 shows the applicant entered active duty on 24 March 1971 and he was honorably discharged on 27 June 1974 to reenlist in the RA.  He completed 3 years, 3 months, and 4 days of net active service this period.

6.  The applicant reenlisted in the RA on 28 June 1974 for a period of 6 years.

7.  He was notified that he was to be involuntarily reclassified into an infantry MOS and reassigned to Fort Campbell, Kentucky in March 1976.

	a.  He was released from training for lack of motivation.

	b.  His leadership, initiative, and responsibility were evaluated as substandard.

8.  The applicant was counseled by his commander on 9 February 1977 for writing ten bad checks during the period November 1976 to January 1977.   He acknowledged being counseled by his commander, offered no comment, and signed the counseling statement. 
9.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for leaving his appointed place of duty on 1 March 1977.  He was reduced from SGT (E-5) to specialist four/pay grade E-4 on 17 March 1977.

10.  The applicant's commander notified him that he was initiating action to discharge him for misconduct based on his inability to function as a Soldier in the U.S. Army and an established pattern of failing to pay debts.  The applicant was advised of his rights and the separation procedures involved.

11.  The applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.

   a.  He waived consideration of his case by a board of officers.

	b.  He waived personal appearance before an administrative separation board.

   c.  He indicated that he would not submit statements in his own behalf.
   
   d.  He acknowledged that military legal counsel for consultation was available to assist him and he declined that opportunity.

   e.  He was advised he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions discharged was issued to him.

   f.  He acknowledged he understood that if he received an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State law and that he may expect to encounter substantial prejudice in civilian life.
   
   g.  The applicant and consulting counsel each placed their signature on the document.

12.  The immediate and intermediate commanders recommended approval of the applicant's separation action.

13.  The separation authority approved the chain of command's recommendation for discharge of the applicant and directed he be discharged for misconduct; that he be reduced to the lowest enlisted grade; and that he be issued an Under Other Than Honorable Discharge Certificate.

14.  The applicant's DD Form 214 shows he entered active duty this period on
28 June 1974 and he was discharged on 13 May 1977 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5a(5) and 13-17e, for misconduct.  His service was characterized as under other than honorable conditions.

   a.  He had completed 2 years, 10 months, and 16 days of net active service this period.

   b.  It shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Bronze Star Medal, Army Commendation Medal, Army Good Conduct Medal
(2nd Award), and Sharpshooter Marksmanship Qualification Badge with
Rifle (M-14) Bar.

15.  On 21 June 1977, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge.  The ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

16.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, 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.

	a.  Chapter 3, 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.

	b.  Chapter 3, 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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions discharge should be upgraded to an honorable discharge because his wife was writing bad checks without his knowledge, and his company commander was prejudiced and lied to him about the character of service he would receive due to a discharge based on misconduct.

2.  The applicant's contentions were carefully considered. 

	a.  The evidence of record shows the applicant was counseled for writing bad checks.  There is no evidence of record and the applicant provides insufficient evidence to show that his wife wrote the bad checks.  In fact, both at the time of his counseling on the matter and during his separation processing, the applicant elected not to submit any statements in his own behalf in which he could have offered such information in defense and mitigation.

	b.  There is no evidence of record and the applicant provides insufficient evidence to show his company commander was prejudiced against him.

	c.  Records show the applicant acknowledged he understood that if he received an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran.

	d.  Thus, the evidence of record clearly refutes the applicant's contentions. 

3.  The evidence of record shows the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 13-5a(5) and 13-17e, for misconduct was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  In addition, the type of discharge directed and the reasons were appropriate and equitable.

4.  The applicant's 23 March 1971 and 27 June 1974 DD Forms 214 document his two periods of honorable active duty service.

5.  Records show the applicant was released from training for lack of motivation; his leadership, initiative, and responsibility were evaluated as substandard; he received NJP for leaving his appointed place of duty, and he wrote ten bad checks.  Thus, the applicant's character of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.
6.  Therefore, in view of all of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20120001531



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ABCMR Record of Proceedings (cont)                                         AR20120001531



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