IN THE CASE OF:	  

		BOARD DATE:	  11September 2012

		DOCKET NUMBER:  AR20120004934 


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 discharge under other than honorable conditions.

2.  The applicant states during his military service his conduct and efficiency were good and he received awards and decorations.  He was close to finishing his term of enlistment and it was unfair that he was issued such a discharge.  The mistakes he made in the military have haunted him for many years.  At that time it was hard for him to communicate; however, since his discharge he has led a successful life and has been good provider for his family.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 31 March 1988.  He successfully completed training and he was awarded military occupational specialty 19D (Cavalry Scout).  

3.  The applicant's military service record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:

* 29 October 1990, for writing a bad check and not having sufficient funds in his checking account
* 22 December 1990, for writing a bad check and not having sufficient funds in his checking account

4.  On 7 January 1991, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for writing a bad check and not having sufficient funds in his checking account.

5.  On 29 January 1991, the applicant accepted a general counseling statement for writing a bad check and not having sufficient funds in his checking account.

6.  On 15 February 1991, he accepted NJP under Article 15, UCMJ for disobeying a lawful order from a superior officer.

7.  His military service record further reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:

* 1 April 1991, for writing a bad check and not having sufficient funds in his checking account
* 29 April 1991, for writing a bad check and not having sufficient funds in his checking account
* 1 July 1991, for missing formation
* 7 July 1991, for not being at his appointed place of duty
* 15 July 1991, for straggling in physical training formation

8.  On 6 August 1991, the applicant accepted a general counseling statement for indebtedness.

9.  On 4 October 1991, he accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) for the period 6 September 1991 through 12 September 1991.  

10.  On 5 November 1991, the applicant's commander initiated elimination action on him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12b, for misconduct.  The reasons cited by the commander were the applicant's writing bad checks, disobeying a lawful order, being AWOL, failing to report to his appointed place of duty, and forging a check.

11.  The applicant was advised by consulting counsel of the basis for the contemplated separation action.  He was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 
635-200, chapter 14.

12.  The applicant voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service or description of separation no less favorable than general under honorable conditions.  The applicant also indicated that he would provide statements on his own behalf.  The statements on his behalf are not available.

13.  On 17 December 1991, the applicant's conditional waiver was disapproved and he waived his right to an administrative separation board and indicated he would accept a under other than honorable conditions discharge.  

14.  On 27 December 1991, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "misconduct – pattern of misconduct" with issuance of a under other than honorable conditions discharge certificate.  On 10 January1992, he was discharged accordingly at the rank of private.  His DD Form 214 shows he completed 3 years, 9 months, and 4 days of creditable active service with 6 days of lost time.

15.  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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  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 under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

16.  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.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The applicant's military service records show he had a history of writing bad checks; he forged his signature on a check, received three Article 15's, disobeyed a lawful order, was AWOL, and failed to report to his appointed place of duty.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20120004934



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ABCMR Record of Proceedings (cont)                                         AR20120004934



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