IN THE CASE OF:	  

		BOARD DATE:	  	   8 January 2009

		DOCKET NUMBER:  AR20080016704 


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, upgrade of his discharge, characterized as general under honorable conditions, to an honorable discharge.

2.  The applicant states, in effect, he was having financial problems primarily due to his ex-wife’s use of a Power of Attorney at the time.  He states that collection agencies were calling his commander’s office, which led to his discharge.  He adds he never had any disciplinary problems prior to this during his military career and he only had 1 year left on his enlistment commitment when he was discharged under honorable conditions.  He concludes by stating all of his problems at the time were financial, he corrected the situation 15 years ago, and would like the opportunity to reenter the military to continue to serve his country.

3.  The applicant provides no additional documentary evidence.

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 military personnel records show that he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program for a period of 8 years on 15 January 1986.  He then enlisted and entered active duty in the Regular Army (RA) for a period of 3 years on 18 February 1986.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 91A (Medical Specialist).  The applicant attained the rank of specialist four/pay grade E-4 on 1 May 1988.

3.  The applicant’s military personnel records show that he reenlisted in the RA for a period of 4 years on 23 September 1988.  The applicant was laterally appointed to the rank of corporal/pay grade E-4 on 1 August 1990.

4.  The applicant’s military personnel records show that he reenlisted in the RA for a period of 4 years on 4 December 1991.

5.  The applicant's military personnel records contain a DA Form 2-1 (Personnel Qualification Record).  Item 5 (Oversea Service) shows he served overseas in Germany from 19 February 1989 through 5 January 1991, Saudi Arabia from 6 January 1991 through 15 May 1991, and Germany from 16 May 1991 through 9 March 1992.

6.  On 6 January 1993, the company commander notified the applicant that separation action was being initiated on him under the provisions of Army Regulation 635-200 (Enlisted Personnel - Enlisted Separations), chapter 13 (Separation for Unsatisfactory Performance).  The company commander’s recommendation of the applicant's separation was based on the applicant’s inability to maintain financial responsibility and stability.  In support of the recommended separation action, the company commander attached copies of documents pertaining to the applicant’s indebtedness and the counseling he received related to his indebtedness.  The letter of notification shows that the applicant was advised of his rights.  The company commander also stated he was recommending the applicant receive an honorable discharge and that the least favorable characterization of service he may receive is other than honorable.

7.  On 7 January 1993, the applicant acknowledged with his signature that he had been advised by consulting counsel of the basis for the contemplated action to separate him from the Army for unsatisfactory performance and elected not to submit statements in his own behalf.  The applicant waived consideration of his case by an administrative separation board, waived personal appearance before an administrative separation board, waived his right to have a minority group member sit on the administrative separation board, and waived representation by counsel.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him.  He further indicated that he understood he would be ineligible to apply for enlistment in the U.S. Army for a minimum period of 2 years after discharge.  The applicant’s legal counsel also affixed his signature to the document.

8.  On 7 January 1993, the applicant’s company commander recommended the applicant's separation from service under the provisions of Army Regulation 
635-200, Chapter 13, for unsatisfactory performance and forwarded the separation action through the chain of command to the approving authority.  The basis for the company commander’s recommended action was the applicant’s inability to achieve and maintain financial responsibility.

   a.  The separation packet contains a Retail Installment Contract and Security Agreement, dated 16 December 1988, that shows the applicant entered into an agreement to purchase a Pentax K1000 Camera with warranty, for a total sale price of $1,375.70 to be paid in 18 monthly installments in the amount of $76.65 beginning 1 January 1989.

   b.  The separation packet referenced other derogatory information that included a court order for time payment on theft by check charge, dated 16 December 1992; letter of indebtedness from Devon Capital Corporation, dated 16 November 1992; letter of indebtedness from Telecheck, dated 5 November 1992; and a citation for no insurance, dated 3 September 1992.

	c.  The separation packet also contains a copy of The Order of the Court for Extension or Time Payment Agreement, The Municipal Court, Copperas Cove, Coryell County, Texas, The State of Texas versus [Applicant], Issuance of Bad Check, dated 16 December 1992.  This document shows the applicant entered a plea of guilty, was found guilty by the court, was assessed a fine of $67.00 and a cost of $498.68, and agreed to pay the fine and cost on 31 January 1993 or at designated intervals.

	d.  The commander also included copies of counseling statements that document the counseling the applicant received pertaining to his indebtedness beginning 16 July 1992, and he indicated that the applicant continues to exhibit financial irresponsibility and was apathetic towards repaying his just debts.

	e.  The company commander concluded, "[i]f solider is separated, recommend separation with an Honorable Discharge."
9.  On 7 January 1993, the Commander, 21st Combat Support Hospital, Fort Hood, Texas, concurred with the company commander’s recommendation and recommended approval of the applicant’s separation under the provisions of Army Regulation 635-200, chapter 13.

10.  On 11 January 1993, the Commander, 1st Medical Group, 13th Corps Support Command, Fort Hood, Texas, recommended approval of the applicant’s separation under the provisions of Army Regulation 635-200, chapter 13, with an under honorable conditions, General Discharge Certificate.

11.  On 14 January 1993, the Commander, 13th Corps Support Command, Fort Hood, Texas, reviewed the proposed separation action.  The corps commander approved the discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance and directed the applicant be issued an under honorable conditions, General Discharge Certificate.  The commander also directed the applicant be transferred to the Individual Ready Reserve.

12.  The applicant's military personnel records contain a DA Form 4187-E (Personnel Action), dated 22 January 1993, that shows the applicant’s duty status was changed from present for duty (PDY) to confined civil authorities (CCA), effective 1200 hours, 22 January 1993.

13.  The applicant's military personnel records contain a DA Form 4187-E, dated 25 January 1993, that shows the applicant’s duty status was changed from CCA to PDY, effective 0010 hours, 23 January 1991 [sic].

14.  The DD Form 214 (Certificate of Release or Discharge from Active Duty), issued to the applicant on the date of his separation, confirms the applicant was issued an under honorable conditions (general) discharge.  This document also confirms that the authority for the applicant’s separation was Army Regulation 635-200, chapter 13, Unsatisfactory Performance, and that the separation code was "LHJ."  At the time he had completed 6 years, 11 months, and 7 days of net active service during this period and 3 years and 20 days of foreign service.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows he was awarded the Army Commendation Medal, Army Achievement Medal with 3 oak leaf clusters, Good Conduct Medal (2d Award), National Defense Service Medal, Southwest Asia Service Medal with 3 bronze service stars, Kuwait Liberation Medal, Army Service Ribbon, Noncommissioned Officer Professional Development Ribbon, Overseas Service Ribbon, Driver and Mechanic Badge with "W" Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.  Item 18 (Remarks), in pertinent part, shows he served in Southwest Asia from 6 January 1991 through 15 May 1991.  This item also shows the applicant had immediate reenlistments during this period from 18 February 1986 through 22 September 1988 and from 23 September 1988 through 3 December 1991.  Item 29 (Dates of Time Lost During This Period) shows the applicant had 1 day of time lost (22 January 1993) under Title 10, U.S. Code.

15.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Army Reserve Personnel Center, St. Louis, Missouri, Orders D-01-404703, dated 18 January 1994, that shows he was honorably discharged from the USAR effective 18 January 1994.

16.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

17.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 13 provides that a member may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

18.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his general discharge under honorable conditions should be upgraded to an honorable discharge because he was having financial problems primarily due to his ex-wife’s use of a Power of Attorney at the time and this resulted in his discharge.

2.  The applicant’s request was carefully considered; however, he provides insufficient evidence to support his contention that the financial problems and indebtedness that resulted in his discharge from the Army were the fault of his ex-wife.  In fact, the evidence of record shows the applicant personally incurred financial obligations he later failed to fulfill, which resulted in his separation.  Nonetheless, the applicant’s request merits further review.

3.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance was proper and equitable and in accordance with the regulations in effect at the time. Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, the evidence of record shows that the authority, narrative reason, and SPD code recorded on the applicant’s discharge are valid.

4.  In further consideration of the applicant’s case, the Board does not condone the applicant’s actions with respect to his failure to maintain financial responsibility and to pay his just debts during the period of service under review.  However, it is noted that the applicant’s period of financial difficulty occurred over a relatively short period of time (July 1992 through January 1993) when compared to his entire period of active duty service (18 February 1986 through 25 January 1993).  It is also noted that prior to July 1992, the applicant served in Operation Desert Shield/Storm, participated in three campaigns, and his service was recognized by award of the Army Commendation Medal, four awards of the Army Achievement Medal, and two awards of the Good Conduct Medal.  Moreover, at the time of his separation processing, the applicant’s company commander and the Commander, 21st Combat Support Hospital, both recommended that the applicant be separated with an honorable discharge.  

5.  In view of all of the foregoing and based on his overall performance of duty and service for the entire period of service under review, it is concluded that the character of service of the applicant’s discharge is now inequitable and it would be appropriate to correct the applicant’s records.  Therefore, as a matter of justice, the applicant’s military service records should be corrected to show that he was honorably discharged effective 25 January 1993.

BOARD VOTE:

____X____  ____X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from item 24 of his DD Form 214, the entry "UNDER HONORABLE CONDITIONS (GENERAL)";

	b.  adding to item 24 of his DD Form 214 the entry "HONORABLE"; and

     c.  issuing the applicant a DD Form 256A (Honorable Discharge Certificate).




      ___________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)                                         AR20080016704



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ABCMR Record of Proceedings (cont)                                         AR20080016704



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