IN THE CASE OF:	  

		BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130008216 


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 he was never offered any "treatment time" for his actions.

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.  Having prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 19 October 1990 and he held military occupational specialty 62B (Construction Equipment Repairer).

3.  He was assigned to Company C, 1st Engineer Battalion, 1st Infantry Division, Fort Riley, KS.  He was promoted through the ranks to specialist/E-4.

4.  He served in Southwest Asia from on or about 25 December 1990 to on or about 10 May 1991.  He was awarded or authorized the Army Service Ribbon, National Defense Service Medal, Southwest Asia Service Medal with three bronze service stars, Kuwait Liberation Medal-Saudi Arabia, Army Commendation Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars.

5.  His records between August 1992 and October 1993 reveal an extensive history of notifications of dishonored checks and/or writing bad checks.  He was frequently counseled by members of his chain of command for:

* writing bad checks
* receiving multiple notifications of dishonored checks
* riding in a privately-owned vehicle with an open container of alcohol
* failing to satisfy a personal debt

6.  On 22 September 1992, his installation driving privileges were suspended due to multiple citations for driving with an expired registration and failing to maintain insurance.

7.  He attended and successfully completed the Checkbook Management Class at the Army Community Services, Fort Riley, KS, on 28 October (year unknown).

8.  On 1 February 1993, he was convicted by a summary court-martial of one specification of failing to maintain sufficient funds and one specification of larceny.  The court sentenced him to a reduction to the lowest enlisted grade.  The convening authority approved his sentence on 4 February 1993.

9.  On 23 February 1993, his immediate commander notified him of his intent to initiate separation action against him for misconduct – commission of a serious offense – in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c.  The immediate commander cited the applicant's numerous instances of dishonored checks.  He recommended a discharge under other than honorable conditions.

10.  On 23 February 1993, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him.  He waived consideration of his case by an administrative separation board and/or personal appearance before a board and he elected not to submit a statement in his own behalf.  He acknowledged he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* understood he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions

11.  On 23 February 1993, the applicant's immediate commander initiated separation action against him due to misconduct in accordance with Army Regulation 635-200, paragraph 14-12c.  His battalion commander recommended approval with his service characterized as under other than honorable conditions.

12.  On 5 March 1993, the separation authority approved the applicant's discharge subsequent to a review for legal sufficiency and consistent with the chain of command's recommendations with his service characterized as under other than honorable conditions.  The applicant was discharged accordingly on 12 March 1993.

13.  His DD Form 214 confirms he was discharged for misconduct under the provisions of Army Regulation 635-200, paragraph 14-12c, with his service characterized as under other than honorable conditions.  His DD Form 214 further shows he completed 2 years, 4 months, and 24 days of creditable active military service. 

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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 was 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.

	a.  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.  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 records show he committed serious offenses (uttering dishonored checks, riding in a vehicle with an open container of alcohol, and failing to satisfy personal indebtedness).  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant was frequently counseled by his chain of command and he attended and successfully completed the Checkbook Management Class, but failed to respond positively to those efforts.  His discharge was appropriate because the quality of his service was not consistent with acceptable personal conduct and performance by Army personnel.  His misconduct and failure to respond positively to counseling by members of his chain of command diminished the quality of his service.

3.  The applicant's service was not satisfactory and is insufficiently meritorious to warrant an honorable or a general discharge.  Therefore, he is not entitled to 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 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)                                         AR20130008216



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ABCMR Record of Proceedings (cont)                                         AR20130008216



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