IN THE CASE OF:	   

		BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120008946 


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 correction of the narrative reason and separation code shown on his discharge document.

2.  The applicant states he never left his post until he was properly relieved of duty and he is not a coward.  He was not absent without leave (AWOL) and he didn't desert the Army.

	a.  He was not very stable at the time of the events that led to his discharge.  He wasn't paying his bills, he wrote a few bad checks at the post exchange, and he was drinking with what little money he had.

	b.  His first sergeant and company commander viewed the situation as an opportunity to discharge him as an unfit Soldier rather than helping him.

	c.  The reason for his discharge should read "financial irresponsibility," not "AWOL" or "desertion."

3.  The applicant provides a copy of his military identification (ID) card and an application for a military ID card.

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 for a period of 4 years on 12 August 1993.  He was awarded military occupational specialty 31D (Mobile Subscriber Equipment Transport System Operator).

3.  He was assigned to the 17th Signal Battalion in Germany on 10 January 1994.

4.  On 3 October 1995, the applicant's company commander notified him that he was recommending him for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c, due to commission of a serious offense.

	a.  The basis for the commander's recommendation was that the applicant was counseled on 22 June 1995 for wrongfully and unlawfully issuing a check in the amount of $74.17 and counseled on 31 July 1995 for being indebted in the sum of $1,843.37 due to failure to maintain sufficient funds to cover issued checks, each offense constituting the commission of a serious offense.

	b.  The separation packet included four DA Forms 4856 (General Counseling Forms) that show the applicant was counseled on 22 June, 21 July, 31 July, and 13 September 1995 for issuing checks on various occasions without having sufficient funds.

	c.  The applicant was informed of his rights and that the separation authority could direct either an honorable, general under honorable conditions, or under other than honorable conditions discharge.

5.  On 3 October 1995, 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 acknowledged that military legal counsel for consultation was available to assist him and he requested consulting counsel.

	b.  He indicated he would submit statements in his own behalf.

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

	d.  The applicant acknowledged he understood that if he received a discharge certificate/character of service which was less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.

	e.  The applicant and his counsel placed their signatures on the document.

6.  On 13 October 1995, the applicant submitted a statement acknowledging he had incurred debt based on dishonored checks.  He explained that he had a number of personal problems that caused him to become depressed and that he lost control of his finances and physical conditioning.  He requested an honorable discharge under the provisions of Army Regulation 635-200, chapter 13 (Separation for Unsatisfactory Performance), based on indebtedness or under chapter 18 (Failure to Meet Body Fat Standards) for being overweight.

7.  The immediate and intermediate commanders recommended approval of the applicant's separation for misconduct with a discharge under honorable conditions (general).

8.  On 18 October 1995, the separation authority approved the chain of command's recommendation for the applicant's discharge and directed his discharge for misconduct and issuance of a general discharge under honorable conditions.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 26 October 1995 under the provisions of Army Regulation 635-200, paragraph 14-12c(1), for misconduct with his service characterized as under honorable conditions.  He completed 2 years, 2 months, and 15 days of net active service.  It also shows in:

	item 25 (Separation Authority):  Army Regulation 635-200, paragraph 
14-12c(1);

	b.  item 26 (Separation Code):  "JKD [Misconduct]"; and

	c.  item 28 (Narrative Reason):  "Misconduct."

10.  There is no evidence the applicant applied to the ADRB to change the reason and authority or for an upgrade of his discharge within its 15-year statute of limitations.

11.  In support of his request, the applicant provides a copy of a DD Form 1173 (Application for Uniformed Services Identification Card - DEERS Enrollment), dated 25 October 1995, and a DD Form 2 (Geneva Conventions ID Card) issued on 25 October 1995.  The ID card shows an expiration date of 26 October 1995 and is over-stamped with the statement, "No Check Cashing Privilege."

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under:

* Article 123a for making, drawing, or uttering any check, draft, or order without sufficient funds with intent to deceive
* Article 134 for dishonorably failing to pay debt

13.  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 (one for which a punitive discharge is warranted and authorized), and convictions by civil authorities.  Paragraph 14-12c provides that Soldiers are subject to separation for commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely-related offense under the Manual for Courts-Martial.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It identified SPD code "JKD" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(1), for misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason and separation code shown on his discharge document should be changed to something other than misconduct because his commander and first sergeant didn't afford him the opportunity to resolve his personal situation.

2.  Records show the applicant was counseled on four occasions over a period of 3 months for issuing checks without having sufficient funds.  Thus, the evidence of record refutes the applicant's contention that his command did not afford him the opportunity to resolve his financial situation.

3.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c(1), for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, his DD Form 214 shows the correct authority, narrative reason, and SPD code.  Therefore, the type of discharge directed and the reasons were appropriate and equitable.

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)                                         AR20120008946



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ABCMR Record of Proceedings (cont)                                         AR20120008946



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