IN THE CASE OF: BOARD DATE: 14 May 2021 DOCKET NUMBER: AR20210005858 APPLICANT REQUESTS: That his under honorable conditions (general) discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) * Personal Statement * Statement of Indebtedness from the Defense Finance and Accounting Service (DFAS), Indianapolis Center, IA * Letter from DFAS, Denver, CO * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant indicates in a personal statement that at the time of discharge he had written some checks that went into overdraft. The bank told him the reason the checks were not paid was because they got too many checks at the same time. This was the main reason he was discharged from the military. He paid the debt in full soon after he was discharged. DFAS informed him and the credit bureaus that he no longer owes them anything. He has provided this supporting evidence to the Board in support of his request. 3. The applicant provides a: a. DFAS statement of indebtedness showing he was in debt to the U.S. Government in the amount of $3,238.43. b. DFAS Letter, dated 5 April 1995, advising him the debt had been paid-in-full and the credit bureaus had been informed to delete his account from their records. 4. The applicant completed honorable Regular Army (RA) service from 2 August 1978 to 18 August 1982, 19 August 1982 to 2 October 1986, and from 3 October 1986 to 9 March 1989. 5. On 10 March 1989, he reenlisted in the RA for 4 years in pay grade E-5. On 9 December 1986, he was assigned to Fort Bragg, NC, with duties in in military occupational specialty (MOS) 83F (Printing/Bindery Specialist). On 21 November 1989, he was assigned to Norway, with duties in his MOS. 6. The applicant's record does not contain all of the facts and circumstances surrounding the discharge process. However, the record does contain: a. A counseling statement, dated 2 April 1991, showing the applicant’s commander counseled him concerning writing bad checks and revised a plan to help him satisfy his debt. He would get a loan and pay the debt, get financial counseling, and see a doctor among other things, if there were no further outstanding checks. b. On 15 April 1991, the Commander, United States Army Criminal Investigation Command (USAClDC) District, Kaiserslautern, Germany, disclosed in a preliminary investigation that the applicant authored and negotiated forty-nine personal checks drawn against First Citizens National Bank and Trust Company, Fort Bragg, NC, between 11 February and 18 March 1991, property of the U.S. Government. He confessed that he had a gambling and drinking problem and he lost accountability of what he was doing. c. On 26 April 1991, the applicant's commander notified him of his intent to separate him under, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-12c, for misconduct. The reason for this proposed action was the applicant had written 48 known dishonored checks between 11 February 1991 and 17 March 1991, totaling $3,775, including over $140 in penalty fees. Three of the 48 checks were written to the 7240 ABS Finance Office totaling $1,425, while the other 45 checks were written to the Kolsas NCO club. He was also overdue on his rent payments for March and April 1991 for 13,000 NKR [Norwegian Krone] (approximately $2,000). Furthermore, he was overdue on his electric bill in the amount of 10,513 NKR (approximately $1,617.38). d. After consulting with counsel, the applicant acknowledged counsel had advised him of the basis for the separation action, the rights available to him, and the effect of waiving those rights. He waived a separation board contingent upon receiving a characterization of service not less favorable than general, under honorable conditions. There are no statements available that were submitted in his behalf at the time. e. The applicant’s unit commander recommended separation from the Army under paragraph 14-12c, AR 635-200, due to commission of a serious offense, approval of his conditional waiver, and with the issuance of a general discharge. The commander stated an offer of assistance was made to the applicant several months ago but was not accepted. He received financial counseling on 27 February 1991 and 4 April 1991. f. The separation authority approved the commander's recommendation. On 10 June 1991, he was discharged accordingly, in pay grade E-5. His DD Form 214 shows he completed 12 years, 10 months, and 9 days of total active service. His DD Form 214 also reflects in: * (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – Army Service Ribbon, Good Conduct Medal (4th Award), Army Achievement Medal, Joint Service Commendation Medal, Noncommissioned Officer Professional Development Ribbon (with Numeral 2), National Defense Service Medal, Overseas Service Ribbon, Expert Marksmanship Qualification Badge Rifle (M-16) * (Character of Service) – Under Honorable Conditions, General * (Separation Authority) – AR 635-200, Paragraph 14-12c * (Narrative Reason for Separation) – Misconduct-Commission of a Serious Offense 7. AR 635-200 in effect at the time, provided that commanders were to initiate separation action under chapter 14 when Soldiers had committed serious offenses for which the uniform Code of Military Justice (UCMJ) authorized a punitive discharge as a maximum punishment; larceny and wrongful appropriation were deemed a serious offense, and the UCMJ showed a punitive discharge could be adjudged. 8. Appendix 12 (Maximum Punishment Chart), Manual for Courts-Martial shows the maximum punishments include punitive discharges for violating the following articles of the UCMJ: Article 121 (Larceny and Wrongful Appropriation) of more than $1,000, carries punishment of a bad conduce discharge (BCD), a forfeiture of all pay and allowances, and confinement for 1 year. 9. In reaching its determination, the Board can consider the applicant's petition, his contentions, his service record, and his submissions in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the applicant provided no evidence of post- service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation was not in error or unjust. The Board concurs with the correction described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Other than the correction addressed in Administrative Note(s) below, the Board determined 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 otherwise insufficient as a basis for correction of the records of the individual concerned. 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. ADMINISTRATIVE NOTE(S): 1. AR 635-5 (Personnel Separations – Separation Documents) states for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except “honorable,” enter, in Remarks, “CONTINUOUS HONORABLE ACTIVE SERVICE FROM” (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment). Then enter the specific periods of reenlistments as prescribed above. 2. As a result amend item 18 (Remarks) of his DD Form 214 by adding the following entry “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19780802 to 19890309.” REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-5 for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are later separated with any characterization of service except “honorable,” enter, in Remarks, “CONTINUOUS HONORABLE ACTIVE SERVICE FROM” (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment). Then enter the specific periods of reenlistments as prescribed above. 3. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It provides: a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 4. Appendix 12 (Maximum Punishment Chart), Manual for Courts-Martial shows the maximum punishments include punitive discharges for violating the following articles of the UCMJ: Article 121 (Larceny and Wrongful Appropriation) of more than a $1,000, carries punishment of a bad conduce discharge, a forfeiture of all pay and allowances, and confinement for 1 year. 5. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony (to include that provided by an applicant), policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005858 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210005858 6 ABCMR Record of Proceedings (cont) AR20210005858 5