IN THE CASE OF:	  

		BOARD DATE:	  	  30 December 2008

		DOCKET NUMBER:  AR20080016244 


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 general discharge be upgraded to an honorable discharge and that she be allowed to retire under the Voluntary Early Retirement Program.   

2.  The applicant states, in effect, that her spouse was the cause of her separation.  Furthermore, her spouse was discouraged from appearing on her behalf by her supervisor and this supervisor would not submit her early retirement application because he personally opposed the program. 

3.  The applicant provides no additional documents in support of her application. 

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's record shows that on 17 October 1986 she reenlisted in the United States Army Reserves for a period of 6 years after serving 11 years, 
1 month and 11 days of active military service and 2 years, 9 months and 21 days of inactive military service.  Her military occupational specialty was 75C (Personnel Management Specialist).  On 27 January 1992, the applicant reenlisted for a period of 3 years.  The highest grade she attained was sergeant first class pay grade E-7.  

3.  The applicant's record shows that during her active duty tenure she earned the following awards:  The Meritorious Service Medal; the Army Service Ribbon; the Army Achievement Medal, the Army Commendation Medal (5th Award); the Army Good Conduct Medal (4th Award); the Overseas Service Ribbon with Numeral 2; the Noncommissioned Officer Professional Development Ribbon with Numeral 3; the National Defense Service Medal (2nd Award) and the Sharpshooter Marksmanship Qualification Badge with Rifle (M-16).

4.  On 27 July 1992, the applicant received a Letter of Reprimand (LOR), dated 30 June 1992, for failure to maintain the moral and professional traits of a senior noncommissioned officer.  The applicant was counseled both formally, informally, verbally and received written documentation for continuing to write numerous fraudulent checks which were returned due to insufficient funds.   

5.  On 6 December 1992, the unit commander notified the applicant of his intent to initiate separation action on her under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct.  The commander's reasons for taking this action were the applicant's utterance of fraudulent checks; false swearing; falsifying documents to civilian appointed court officials and failure to meet personal financial obligations.  Based on the above reasons the unit commander recommended that the applicant receive an Under Other Than Honorable Conditions Discharge Certificate.  The applicant was advised of her rights and that she was entitled to a hearing before an administrative board.  

6.  On 16 December 1992, the applicant acknowledged receipt of the notification of separation action initiated under the provisions of Army Regulation 635-200, chapter 14.  After being advised of the basis for the contemplated separation action and the rights available to her, the applicant requested a hearing before an administrative separation board.

7.  On 25 May 1993, an administrative separation board convened to hear evidence regarding the applicant's proposed discharge and to determine whether the applicant should be discharged because of misconduct before her expiration term of her service.  The board proceedings carefully considered the evidence before it and the majority of the board found the following:
      a.  The utterance of fraudulent checks.  The allegation was supported by the preponderance of the evidence and the allegation warrants separation. 
      
      b.  False swearing.  This allegation was supported by the preponderance of the evidence.  The allegation did not warrant separation with a minority dissension. 
             
      c.  Falsified documents to civilian appointed court official.  This allegation was supported by a preponderance of the evidence.  The allegation did not warrant separation with a minority dissension.
      
      d.  Failure to meet personal financial obligations.  This allegation was supported by the preponderance of the evidence.  The allegation did not warrant separation with a minority dissention.   

8.  In view of the above factors the majority of the administrative separation board found the applicant undesirable for further retention in the military service under the provisions of chapter 14, paragraph 14-12b, pattern of misconduct with a general discharge.  The majority of the board recommended suspension of her separation for 6 months and that she pay full restitution for all outstanding checks. 

9.  On 18 June 1993, the Commanding General approved the recommendation that the applicant be discharged from the service with a general discharge under honorable conditions.  The recommendation that the applicant's separation be suspended for 6 months was disapproved.  The Commanding General approved immediate separation from service for misconduct and she be issued a general discharge under honorable conditions.  The applicant's file was forwarded to Headquarter, Department of the Army for final approval because the applicant had over 18 years of active military service.  

10.  On 30 August 1993, the Enlisted Separation and Appeals Branch, U. S. Army Personnel Command (PERSCOM), Eisenhower Avenue, Alexandria, Virginia, approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, with a general discharge.  The applicant was not authorized separation pay or involuntary separation benefits, authorized under the provisions of the Defense Authorization Act of 1991. 

11.  On 1 October 1993, the applicant was discharged under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct, with a discharge under honorable conditions (general).  The DD Form 214 issued to the applicant upon her discharge shows she held the rank of sergeant first class and that she had completed a total of 18 years, 6 months, and 6 days of active military service.  

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  The regulation states, in pertinent part, 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 Under Other Than Honorable Conditions (UOTHC) discharge is normally considered appropriate for members separated under this chapter.  However, the separation authority may award a general or an honorable discharge if warranted by the member's overall record of service.

13.  The FY 1993 National Defense Authorization Act (Sec. 4403, P.L. 102-484) granted the Service Secretaries temporary early retirement authority (TERA) (commencing on 23 October 1992 and expiring on 30 September 2001) for the services to offer early retirements to personnel with more than 15 but less than 20 years of service.  Additional eligibility requirements for such early retirement opportunity, including factors such as grade, years of service, and skill could be required.  

14.  Commander, PERSCOM -Alexandria message number 93-164, dated        20 April 1993, implemented Public Law 102-484 and announced the Secretary of the Army's criteria for the fiscal year (FY) 1993 Early Retirement Program.  It stated, in pertinent part, that early retirement was not an entitlement, and it would only be offered to Soldiers and officers who met the strict eligibility requirements outlined by the Secretary of the Army.  The TERA was used to retire members whose skills were in excess to the Army's short term and long term needs.  Individuals who had already separated or were scheduled to separate under the provisions of any other voluntary or involuntary separation program would not be eligible for TERA.

15.  On 26 August 1996, after carefully reviewing the applicant's entire record, the Army Discharge Review Board (ADRB) determined the applicant's discharge was proper and equitable, and it voted to deny the applicant's request for an upgrade of her discharge.  

16.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that she be allowed to retire under the TERA was carefully considered and found to be without merit.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  An administrative separation board considered her case and determined the preponderance of the evidence supported the allegations upon which her separation processing was based, and recommended she be separated for misconduct and that she receive a discharge under honorable conditions (general).  Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met, and that the rights of the applicant were fully protected throughout her separation process.

3.  Further, although the applicant's military service record prior to the offenses in question was good, given the gravity of the multiple offenses she committed, it was not sufficiently meritorious for the separation authority to support an honorable discharge, nor does it support an upgrade at this time.  

4.  Public Law 102-484 provided that each Secretary of a military department could implement the TERA policy and prescribes additional eligibility requirements for early retirement.  The Secretary of the Army determined that early retirement would not be an entitlement, and it would only be offered to Soldiers and officers who met the strict eligibility requirements outlined by the Secretary of the Army.  In implementing the Army policy, the Secretary of the Army, stipulated that individuals who had already separated or were scheduled to separate under the provisions of any other voluntary or involuntary separation program would not be eligible for TERA. 

5.  Given the above regulatory guidance, the applicant is not entitled to retirement under the TERA program.

6  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.


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)                                         AR20080016244



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ABCMR Record of Proceedings (cont)                                         AR20080016244



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