PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            1 February 2001
	DOCKET NUMBER:   AR2000041063

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Antoinette Farley .		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Barbara J. Lutz		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his under other than honorable conditions discharge (UOTHC) be upgraded to an honorable discharge.

3.  The applicant states, in a sworn affidavit submitted with counsel's brief, that he successfully served a 3 year enlistment and reenlisted in March 1980.  Shortly after reenlistment, in pay grade E-3, he married a lady with four children.  He immediately began to have financial difficulties.  There was some confusion with the local authorities about whether the applicant's new wife was still entitled to public assistance.  He requested permission to work a second job through command channels, but never got a reply.  Then he was on orders to a new duty station and his personal possessions were already shipped ahead.  He and his family were sleeping on the floor with no household belongings and he felt compelled to waive a personal appearance before a board of officers.  All his bills were paid before he was discharged from active duty.  He was young and inexperienced and did not understand the impact a UOTHC discharge would have on his life.  He is now a well respected correctional officer working for the Department of Corrections, Washington, DC.  It has been 16 years since he was discharged and he has made up for many of his past mistakes.  

4.  The applicant's counsel contends in his brief with the case that the evidence in his record does not support the reason for the applicant's discharge.  The applicant had extensive marital/family problems and the family's financial problems were not taken into account during the processing of the applicant for discharge.  Several letters of character reference from the applicant's current employer; a local police check (no arrests); a copy of the applicant's credit history; a copy of the applicant's job history, in resume form; and an undated personal letter from the applicant's current wife are all submitted in support of the application.  

5.  The applicant's military records show that he had a prior period of Regular Army (active) service from 28 June 1977 through 24 March 1980.  On 24 March 1980, he was honorably discharged.  

6.  During his first enlistment he received two nonjudicial punishments (NJPs) under the provisions of Article 15, Uniform Code of Military Justice for disobeying lawful orders on three occasions and missing movement.  He was also absent without leave for 3 days (no recorded punishment) and had a record of issuing four checks without sufficient funds in his bank account by January 1980.  On 
21 January 1980, he was counseled by his platoon sergeant concerning these four checks.  He was advised that continued issuance of bad checks could result in administrative or punitive action against him.  He may have also received debt counseling and checkbook management training.  Further, he was denied the award of the Good Conduct Medal due to his substandard record of service.  

7.  On 25 March 1980, he reenlisted for 3 years in pay grade E-3.  His reenlistment option was to be retrained from military occupational specialty (MOS) 57H (Terminal Operations Coordinator) to MOS 44B (Metal Worker).

8.  On 16 May 1980, at age 20, he married a woman who was much older than he was and who supposedly had four children from a previous marriage.  

9.  On 1 June 1980, he was advanced to pay grade E-4.  

10.  In June 1980, the applicant wrote a check for $100.00 without sufficient funds. On 13 August 1980, the applicant was enrolled into checkbook management training, in view of his failing to manage his personal affairs.  On 
24 September 1980, he was certified as successfully completing his training from the education center at Fort Eustis.

11.  On 4 February 1981, the applicant was counseled by his platoon sergeant in reference to several phone calls pertaining to dishonored checks totaling $450.00. He supposedly had been previously counseled by his platoon leader and platoon sergeant and arrangements had been made for him to meet with a chaplain concerning his family problems and with Army Community Services on budgeting. He also told his platoon sergeant on 2 February that he had repaid some of the funds, but as of 4 February they had not been paid.  He refused to sign the letter of counseling.

12.  On 3 March 1981, the applicant received NJP for wrongful possession of some amount of marihuana on 18 February 1981.  His punishment included performing 14 days of extra duty. 

13.  On 27 March 1981, the applicant’s unit commander advised him that he was initiating action to separate him under the provisions of chapter 14, 
AR 635-200, for misconduct – an established pattern for showing dishonorable failure to pay just debts.  The applicant was advised of his rights and that he could receive a UOTHC and that he was entitled to a hearing by a board of officers.

14.  On an unknown date, he consulted with legal counsel and was informed of the impact of a less than fully honorable discharge.  He waived a hearing by a board of officers and elected not to make a statement in his own behalf.

15.  On 27 March 1981, the applicant received a medical examination which cleared him for separation.  On 31 March 1981, he underwent a mental status evaluation, which noted that he had a tendency to blame others and offer plausible rationalizations for the difficulties he was experiencing.  He was cleared for any disciplinary action or an administrative separation.  

16.  On an unknown date, the applicant's unit commander recommended through the chain of command that the applicant be discharged under the provisions of chapter 14, Army Regulation 635-200, for failure to pay his just debts.  He cited the applicant's repeated issuance of bad checks, including the January 
1980 counseling for four bad checks, the action taken in August and September 1980 to obtain debt management training, and the counseling on 4 February 1981. Also included was documentation showing notification to the unit for approximately 20 instances of issuance of checks without sufficient funds to the post exchange, the NCO club and another club on the installation at Fort Eustis, Virginia.  Some of these notifications appear to be duplicates.  

17.  In this recommendation, the unit commander also indicated that the applicant had one NJP action (for possession of marijuana) during this enlistment.
However, included with the separation packet is another document, TCFE Form 177 (Commanders Checklist-Administrative Discharges (AR 635-200)).  On this form in item 3 (Reductions) a reduction to pay grade E-1 is shown on 14 August 1978 (during his prior enlistment), that he had a 3-day AWOL (which was during his prior enlistment) and that he had three NJP's, two during his prior enlistments, plus the one NJP during his current enlistment. 

18.  On 28 April 1981, the special court-martial authority waived further rehabilitative efforts in accordance with paragraph 13-8, Army Regulation 635-200.

19.  Between the 1st and 4th of May 1981, the applicant’s intermediate commanders recommended approval. 

20.  On 11 May 1981, the general court-martial convening authority approved his discharge under the provisions of chapter 14, AR 635-200, for misconduct–an established pattern for showing dishonorable failure to pay just debts, with the issuance of a UOTHC discharge.  He was to be administratively reduced to pay grade E-1.   

21.  On 14 May 1981, the applicant was discharged with a UOTHC discharge, under the provisions of chapter 14, AR 635-200, for misconduct–an established pattern for showing dishonorable failure to pay just debts.  

22.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on 14 May 1981 has several improper entries pertaining to his two periods of service in item 12 (Record of Service) and in item 18 (Remarks). Army Regulation 635-5 (Separation Documents) required that only one DD Form 214 be issued to cover a single period or two or more continuous periods of active duty.  Entries in item 12 would show service accounting (years, months and days) and in item 18, periods of enlistment.  The form shows in item 12a (Date Entered Active Duty This Period) that the beginning date of his service was 25 March 1980, when it should have been 28 June 1977; item 12b (Separation Date This Period), is correctly shown as 14 May 1981; item 12c (Net Active Service This Period) is correctly shown as 3 years, 10 months and 17 days for the period of service between June 1977 and May 1981.  

23.  In item 18 of the DD Form 214, the only period of enlistment shown is 
800325-830324, when it should also have included his prior period of service from 770628-800324.  

24, Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absences without leave.  Action would be taken to separate a member for misconduct when it is clearly established that rehabilitation was impractical or unlikely to succeed.  Army policy stated that a discharge UOTHC is normally considered appropriate, but a GD under honorable conditions or an honorable discharge could be granted in certain cases.  If an UOTHC discharge was approved, the soldier would be administratively reduced to the lowest enlisted grade, pay grade E-1.  

25.  That same regulation, at paragraph 1-11, specifies, in pertinent part:

"…The type of discharge and character of service will be determined by the military record during the current enlistment or period of service, plus any extension thereof, from which the soldier is being separated.  It is of paramount importance that the soldier's performance of duty and conduct be accurately evaluated and be based on the overall period of service and not on any isolated actions or entries on the Enlisted Qualification Record (DA Form 2-1). " 

26.  The applicant's request for an upgrade and a change in the reason for his discharge was reviewed by the Army Discharge Review Board (personal appearance) on 11 January 1983 and denied.  

CONCLUSIONS:

1. The Board notes that the applicant's command permitted him to reenlist in March 1980 with a less than fully satisfactory record of prior service.

2.  The Board finds that the applicant's record during his second period of service clearly supported the reason for his discharge.  He was unable at that time to handle his personal affairs and brought discredit upon himself and the Army by his repeated instances of issuance of checks with insufficient funds.

3.  Notwithstanding his command's waiver of further counseling efforts, the Board is not convinced that the applicant was given sufficient counseling by his chain of command and the Army Community Services at his installation.  If his family situation was as desperate as he claims, then these same agencies should have been able to assist him.

4.  Further, the Board notes several inconsistencies in the discharge process.  Specifically, his command included information concerning his disciplinary record during his prior period of enlistment in the current discharge packet.  This is in direct violation of a basic principle of fairness and equity in the discharge process and paragraph 1-11 of Army Regulation 635-200.  Additionally, the documents showing his bad checks appear to be duplicative in some instances.  

5.  Therefore, the Board concludes that the characterization of service in this case is too harsh.  His record of service was certainly substandard, but it did not warrant a UOTHC discharge.  Accordingly, the Board finds that a general discharge, under honorable conditions would be more appropriate. 

6.  This conclusion is also supported by the applicant's good post service adjustment for almost 20 years, his successful efforts to make himself a respected member of the community, and his successful efforts to keep his personal affairs in order.  

7.  However, the Board also finds that the reason for the applicant's discharge is fully supported by the record of service and that there is no basis to change the reason for his discharge.  

8.  Since the applicant was administratively reduced from pay grade E-4 to pay grade E-1 in connection with the award of a UOTHC discharge, his rank of pay grade E-4, with a date of rank from 1 June 1980 should be restored.  

9.  Additionally, since a new DD Form 214 will be issued, the entry in item 12a should be administratively corrected to show that his period of service was from 28 June 1977.

10.  In view of the foregoing, the applicant’s records should be corrected, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing:

	a.  That the UOTHC discharge of the individual concerned, dated 14 May 
1981 is void and without force or effect;

b.  That he was discharged on 14 May 1981, in accordance with chapter 14, Army Regulation 6354-200, by reason of misconduct-failure to pay just debts, with a general discharge under honorable conditions; and 

c.  That he be issued a General Discharge Certificate in lieu of the UOTHC Discharge Certificate now held by him.

2.  That in connection with this action, a new DD Form 214 be issued to the individual concerned administratively correcting item 12a to show that his service began on 28 June 1977.  Further, item 18 should be corrected to show the entry:  "Continuous service from 770628 until 800324 and immediate reenlistment this period from 800325."  The rank/pay grade for the individual concerned should be administratively restored to SP4/E-4 with a date of rank from 800601.  

3.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__lls____  __jea____  _bjl_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Luther L. Santiful___
		        CHAIRPERSON

INDEX

CASE ID	AR2000041063	
SUFFIX		
RECON		
DATE BOARDED	2001.02.01	
TYPE OF DISCHARGE	UOTHC 	
DATE OF DISCHARGE	19810514	
DISCHARGE AUTHORITY	AR635-200, CH 14 (CM) 	
DISCHARGE REASON	A55.00	
BOARD DECISION	Grant in part, upgrade to GD (UHC)	
REVIEW AUTHORITY	DASA	
ISSUES         1.	144.00	
2.	A01.01	
3.	A01.10	
4.	A01.13	
5.	A93.08	
6.	A93.12