IN THE CASE OF:	  

		BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20130010835 


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 general discharge to an honorable discharge.

2.  The applicant states, in effect, his direct deposit military pay arrived late, he bounced a check, and he was not given a chance to show it was an honest mistake.  He paid the balance due to his bank after the check bounced; however, the military discharged him for an ordinary occurrence that could happen to anyone.  He further states he was discharged although he restored his bank account to good standing.

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.  The applicant enlisted in the Regular Army on 27 November 1990.

3.  The evidence of record shows the applicant received numerous negative counseling statements pertaining to everything from failing to go to his appointed place of duty to insubordination, disrespecting a noncommissioned officer, and operating a motor vehicle without insurance.  The evidence also shows he received a rehabilitative transfer from the Schweinfurt Law Center to the Vilseck Law Center in an effort to provide him with a new start.

4.  Records show he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on 25 June 1993 for wrongfully and unlawfully making and uttering 15 checks to the Army and Air Force Exchange Service Europe, 3 checks to the Vilseck Railhead Club, and 2 checks to the MOMS Club, all checks drawn upon the Merchants National Bank and Trust Company, knowing he did not have or would not have sufficient funds in or credit with such bank for payment of said checks in full upon presentation for payment with the intent to defraud and for the procurement of lawful currency or merchandise on divers occasions during the month of February 1993.
 
5.  On 10 August 1993, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him for commission of a serious offense in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c.  He recommended a general discharge.

6.  On 12 August 1993, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and the rights available to him.  He acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he elected to make a statement in his own behalf.  In his rebuttal letter he stated he was being treated unfairly and did not receive due process because he was told he would be able to keep his job once he received his Article 15; however, he subsequently received a "chapter 14."  He stated he was not counseled before he got into trouble and he believed his supervisor was biased from the beginning.  He claimed this was the first time he was ever in trouble and believed he should be given another chance.

7.  His intermediate commander recommended approval of the discharge action.  The separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 14, and directed the issuance of a General Discharge Certificate.  On 8 September 1993, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was separated for misconduct – commission of a serious offense.  He completed a total of 2 years, 9 months, and 12 days of creditable active military service.

8.  He provided no evidence and his records do not contain any evidence to support his contention that his direct deposit military pay was late which resulted in his punishment under the UCMJ.

9.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  After careful consideration of his military records and all other available evidence, his appeal was denied.  However, during the review the ADRB determined the reason and authority of his discharge should be changed from misconduct – commission of a serious offense – to misconduct.

10.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to upgrade his discharge was carefully considered and determined to be without merit.

2.  The applicant's records include evidence which shows he repeatedly received negative counseling, a rehabilitative transfer, and he violated the UCMJ by passing numerous bad checks to various institutions.  He provided no evidence and his records do not contain any evidence to support his contention that his direct deposit military pay was late which resulted in his punishment under the UCMJ.

3.  The statement provided by the applicant is insufficient to support his contention that he should receive an upgrade of his discharge.  His misconduct clearly shows the quality of his service was diminished below that meriting an honorable discharge.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  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.  Therefore, he is not entitled to an upgrade of his general discharge to honorable.

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)                                         AR20130010835



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ABCMR Record of Proceedings (cont)                                         AR20130010835



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