BOARD DATE:	  15 April 2014

		DOCKET NUMBER:  AR20130013730 


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 it was not illegal for him to postdate checks as his checks were dated for when his government check was deposited into his bank account. 
He believes it was the fault of institutions, or bank, or the restaurant to which the checks were written.  He postdated checks because he had no money in his account.  The checks were postdated legally.

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 in pay grade E-1 on 18 September 1986 and he held military occupational specialty 76Y (unit supply specialist).  He was advanced to pay grade E-2 on 18 March 1987.

3.  He received counseling on:

* 29 June 1987 for being drunk and disorderly, being disrespectful to a superior, and using racial remarks
* 17 July to 20 August 1987 for his duty performance, issuing 14 dishonored checks, being drunk and disorderly, being disrespectful to a superior, and using racial remarks

4.  On 30 September 1987, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for making and uttering worthless checks from 2 to 30 August 1987.  

5.  On 1 October 1987, a bar to his reenlistment was approved.

6.  A DA Form 3822-R (Report of Mental Status Evaluation) prepared in connection with his separation processing shows he was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

7.  On 18 October 1987, the applicant's company commander notified the applicant of the proposed action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 14-12b, for a pattern of misconduct consisting of making and uttering worthless checks, being drunk and disorderly, being disrespectful to fellow Soldiers, and his unsatisfactory duty performance.  The company commander recommended a general discharge and advised the applicant of his rights.

8.  On 16 October 1987 after consulting with counsel, the applicant acknowledged receipt of the proposed separation and receipt of a general discharge.  He waived his rights and elected not to submit a statement in his own behalf.

9.  On 26 October 1987, the separation authority approved his discharge.

10.  He was discharged under honorable conditions (general) on 3 November 1987.  He completed 1 year, 11 months, and 16 days of net active service.


11.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptance conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

	b.  Paragraph 14-12b, in effect at the time, provided that members were subject to separation under this paragraph for a pattern of misconduct consisting of conduct prejudicial to good order and discipline.  A discharge under other than honorable conditions was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant received multiple negative counselings between June and August 1987.  He also accepted nonjudicial punishment under Article 15 and was reduced for misconduct.  His company commander initiated action to separate him with a general discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for a series of misconduct.

2.  It appears that he was issued a general discharge based on his overall record of service.  Normally such service as his would be characterized as under other than honorable conditions.

3.  He provided insufficient evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his general discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his general discharge.


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)                                         AR20130013730



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ABCMR Record of Proceedings (cont)                                         AR20130013730



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