IN THE CASE OF:  	  

		BOARD DATE:  9 July 2015	  

		DOCKET NUMBER:  AR20140018912 


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, in effect, that her under honorable conditions (general) discharge be upgraded to an honorable discharge and that the narrative reason for her discharge be changed to show she was discharged due to a disability.

2.  The applicant states, in effect, that she was a single parent not receiving child support and she suffered with several medical issues.  She was very young at the time and did not know how to handle her money correctly.  It was very difficult to handle everything at one time, and she did not have the support or the funds to do it at that time.  She further contends that she informed her chain of command that her identity had been stolen and she tried to do everything to correct the problem.  She sought assistance from the Judge Advocate General's (JAG) office in completing several affidavits of forgery and she hired a lawyer to help her clear her record.  Her charges were eventually expunged in 2000.  She has searched for all her court documents but was not able to locate them.  She has moved several times and the folder with all the documents, handwriting analysis, and expunged court records could not be located.

3.  The applicant provides her:

* DD Form 293 (Applicant for the Review of Discharge from the Armed Forces of the United States), dated 16 May 2014
* Army Discharge Review Board (ADRB) memorandum, dated 9 June 2000 


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 had prior service, she enlisted in the Regular Army on 19 June 1990 and she completed training as an administrative specialist.

3.  Her records contain:

	a.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 7 August 1996, which shows she was recommended to be barred from reenlistment for presenting 15 insufficient funds checks, dated between11 May - 5 July 1995, all payable to the Fort Jackson Main Exchange and totaling over $6,000.00.  This certificate also shows in item 14 (Other Factual and Relevant Indicators of Untrainability or Unsuitability) that she:

* was counseled on 23 October 1995 by her first sergeant (1SG) reference dishonored checks
* received a letter of reprimand, dated 24 May 1996, reference dishonored checks
* continued to show she was not capable of managing her personal financial affairs

	b.  A statement in response to her Bar to Reenlistment wherein she contended that she had been cleared of the majority of the items listed on the DA Form 4126-R.  She stated that some of the checks were actually drafted in 1994 and totaled $1,200.00.  After discovering the account number printed on her checks was off by one number the Bank had cleared her of all service charges and fees.  She paid the $1,200.00 and her commander cleared her of the debt with a counseling statement.  Her military identification card privileges remained in good standing because it was not her fault.  In regards to her Rentronic's account, she contended that she had been given legal advice to pay only $5.00 per week until the company fixed her dryer.  Although she explained this situation to her chain of command, she was still counseled by her 1SG and went through budget counseling and check writing class.  She also enrolled in the Consumer Credit Counseling Program (CCCP) and consolidated all her bills into one monthly payment.  The third reason for the bar to reenlistment was because she failed to inform her intermediate supervisor that she had a court date to resolve her petition of child support.  She indicated that she informed the supervisor upon her return but she had made an entry of this court date on her direct supervisor's calendar prior to leaving.  Her financial strain was because she was not receiving child support and not because she had a financial problem.

	c.  A DA Form 4126-R, dated 21 October 1996, which shows she was barred from reenlistment on 4 November 1996 for failure to make payments on known debts (Rentronics and CCCP).  On 3 February 1997, her commander reviewed the bar and informed the applicant the bar to reenlistment would remain in effect.

	d.  A DA Form 4856 (General Counseling Form) wherein her commander notified the applicant that she was being recommended for separation for unsatisfactory performance of indebtedness, in accordance with Army Regulation 635-200 ((Personnel Separations – Enlisted Personnel)), chapter 13, failure to overcome bar to reenlistment.  Specifically, she had presented another dishonored check.  She nonconcurred with the counseling statement stating, in effect, that she had never received an initial counseling and was never given a chance to perform to standard.  Further, all her hard work was not taken into consideration.  She lists all her attempts to resolve her delinquencies and contended that she was making payments as best she could.

	e.  A DA Form 2823 (Sworn Statement), dated 8 October 1996, authored by the applicant stating that her checks were stolen at a party and approximately $2,000.00 in checks had been written against the account after it was closed.

	f.  A Review of Bar to Reenlistment (2nd Review), dated 7 May 1997, informed the applicant that the bar to reenlistment would remain in effect and separation proceedings would be initiated.

	g.  An Affidavit of Forgery, filed by the applicant with the Dutch Fork Magistrate's Court, Richland County, SC, on 9 June 1997 contending that a check payable to Sports Action for the amount of $100.78 was not written by her.

	h.  A Report of Mental Status Evaluation, dated 18 June 1977, which psychiatrically cleared her for administrative action and found her able to fully understand the separation proceedings.

	i.  A Report of Medical Examination conducted as part of her separation processing which made note that she suffered from urinary tract infections and migraines but was qualified for separation.

	j.  An Investigator's Report of Incident, drafted by a criminal investigator with the Fort Jackson Law Enforcement Activity, based on a witness interview conducted on 4 August 1997 which shows the applicant wrote several fraudulent checks to the Family Christian Bookstore at several different locations, and later returned the items to receive cash back for the sale.

4.  On 13 August 1997, the applicant's unit commander notified her that he was initiating action which could result in her separation from the Army with an under other than honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14-12b, for a pattern of misconduct.  The reasons for the proposed action included failure to repair; wrongful appropriation; making drawing, or uttering check, draft or order with intent to defraud; residing in government quarters without family members; dishonorably failing to pay debt; and conduct prejudicial to good order and discipline of a nature to bring discredit upon the Armed Forces.

5.  On 18 August 2007, after consulting with counsel, she voluntarily waived consideration of her case by an administrative separation board contingent to receiving a characterization of service or description of separation no less favorable than "General, under Honorable Conditions."

6.  Her conditional waiver of an administrative separation board was accepted.  The appropriate separation authority directed her separation under the provisions of Army Regulation 635-200, chapter 14-12b, with a characterization of service of general under honorable conditions.

7.  On 3 October 1997, she was discharged accordingly.  Her DD Form 214 shows she completed 7 years, 3 months and 15 days of net active service for the period and:

* her service was characterized as "Under Honorable Conditions (General)"
* she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12(b), with a separation program designator (SPD) code of JKA and an RE code of 3
* her narrative reason for separation was "Misconduct"

8.  On 9 June 2000, the ADRB found that she was properly and equitably discharged and denied her request for a change in the character and/or reason of her discharge.
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct, including the commission of a serious offense.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable discharge or a general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.
	
	b.  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.

10.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  It states that item 28 will list the narrative reason for separation based on regulatory or other authority.

11.  Army Regulation 635-40, in effect at the time, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 2-1 (Standards of unfitness by reason of physical disability) of this regulation, provided that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case considered, it is necessary to correlate the nature and degree of physical disability which is present with the requirements of the duties which the member reasonably may be expected to perform by virtue of his office, grade, rank, or rating.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.




DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request to upgrade her discharge or change the narrative reason for her discharge.

2.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct with an under honorable conditions (general) discharge based on multiple acts of indiscipline of which the most prevalent was failure to pay her debts.

3.  The applicant contends that it was not her fault that she was unable to pay her debts because she was the victim of identity theft and she was not receiving child support.  In addition, she incurred legal expenses in order to resolve both these issues.

4.  The fact that the applicant was facing extreme financial hardship as a single parent is noted but is not an acceptable reason for her misconduct.  The available evidence shows she repeatedly wrote fraudulent checks and failed to pay her creditors resulting in numerous counseling statements, a letter of reprimand, a bar to reenlistment, and her subsequent discharge.  The record also shows that despite her participation in the CCCP, debt counseling, and a check writing class, none of these corrective actions prevented the applicant from continuing to present bad checks. 

5.  As part of her separation processing, she received a medical examination which noted two medical conditions.  By regulation, a Soldier must be found unfit to reasonably perform the duties of his or her office, grade, rank, or rating because of physical disability in order to be considered for processing for a medical discharge through the Army PDES.  The evidence of record provides no indication the applicant suffered from a physically or mentally disqualifying condition that would have supported her separation processing through the Army PDES at the time of her separation.

6.   In view of the foregoing, there is no justification or reason to change her character of service, the separation authority, or the narrative reason for separation as she was properly and equitably discharged in accordance with the applicable regulation, all requirements of law and regulation were met, and her rights were fully protected throughout the separation process.



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 that 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)                                         AR20140018912





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ABCMR Record of Proceedings (cont)                                         AR20140018912



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