BOARD DATE:	  6 August 2015

		DOCKET NUMBER:  AR20140021277 


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 that his discharge under other than honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states that his company commander made the decision that he was unfit for duty based on his writing bad checks.  He paid the checks in full and he was not given a fair chance during his separation.

3.  The applicant provides 12 character reference letters and a receipt for a tax deductible donation.

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 was commissioned in the U.S. Army Reserve Transportation Corps as a second lieutenant on 29 July 1983 and entered active duty on 19 September 1983.  He was promoted to the rank of first lieutenant on 19 March 1985.

3.  On 13 December 1985, nonjudicial punishment was imposed against him by the commanding general for uttering four bad checks and two specifications of failure to pay his just debts.  His punishment consisted of a written reprimand, forfeiture of $700.00 per month for 2 months (suspended until 12 June 1986) and restriction for 60 days.  The applicant did not appeal the punishment.

4.  On 4 April 1986, the U.S. Army Military Personnel Center dispatched a letter to the applicant informing him that he was not selected for promotion to the rank of captain and that he was eligible to apply for voluntary early release from his active duty service obligation in accordance with the Fiscal Year 1986 Early Release Program.  The applicant submitted his request through his chain of command and it was returned without action due to the applicant being flagged pending trial by a general court-martial.

5.  A memorandum dated 2 July 1986 contained in his records indicates that the applicant entered into a pre-trial agreement in which he agreed to plead guilty in a court-martial in return for a sentence of nothing in excess of dismissal, total forfeitures and confinement for 45 days.

6.  On 2 July 1986, the applicant was convicted pursuant to his plea by a general court-martial of 11 specifications of uttering worthless checks.  He was sentenced to dismissal from the service, confinement for 30 days and forfeiture of all pay and allowances.  His sentence was approved on 6 August 1986.

7.  The applicant completed his confinement by military authorities and was placed on involuntary excess leave pending his separation.

8.  In compliance with the general court-martial, elimination action was initiated by the applicant’s chain of command.  The complete file concerning his administrative discharge is not present in the available records.  However, his records do contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that he was discharged under other than honorable conditions on 8 May 1987 under the provisions of Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharges), chapter 5, due to conduct triable by court-martial.  

9.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  In support of his application, he provided 12 character reference letters from his pastor, colleagues, business associates, teachers and friends some of whom served in the U.S. Armed Forces.  In the letters, the authors expressed their opinions that the applicant is a trust worthy person with integrity and a strong sense of responsibility.  He is a businessman who seeks to assist others and who is generous with his time and talents within the work environment and within his community.  He is reliable and pays his debts on time.  (It is noted that a majority of the letters are not signed and none are notarized.)  The tax receipt he also provided shows he made a financial donation in excess of $250.00 to a not-for-profit organization.  

11.  Army Regulation 635-120, provided the procedural process whereby an officer on active duty may tender his resignation or be discharged.  The regulation in effect at the time provided that an officer who had been selected for elimination from the service by a general court-martial convening authority or who had been selected by a Department of the Army Selection Board for elimination or to show cause why he should not be eliminated pursuant to Army Regulation 635-105 (Personnel Separations – Officer Personnel), may tender a resignation in lieu of elimination.  A characterization of honorable, under honorable conditions or under other than honorable conditions was authorized depending upon the officer’s service record.

   a.  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.  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.

12.  Army Regulation 15-185 (ABCMR) 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.  Lacking evidence to the contrary, administrative regularity is presumed in the applicant’s administrative separation under the provisions of Army Regulation 635-120, chapter 5, due to conduct triable by court-martial.

2.  There is no evidence in the available records and the applicant has not provided any to show that his discharge was unjust or in error.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with the applicable law and regulation and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.

4.  His repeated mismanagement of his personal finances served to bring discredit to the service.  

5.  The applicant’s contentions and supporting documents have been carefully considered.  However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offenses, the lack of mitigating circumstances and his otherwise undistinguished record of service.

6.  Accordingly, his sentence and resulting discharge were not disproportionate to the offenses for which he was convicted.  He has failed to provide sufficient evidence or reasons to warrant an upgrade of his discharge.  Good post-service conduct is normally considered insufficient evidence to mitigate a properly issued 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 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)                                         AR20140021277





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ABCMR Record of Proceedings (cont)                                         AR20140021277



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