IN THE CASE OF:	  

		BOARD DATE:	      11 AUGUST 2009

		DOCKET NUMBER:  AR20090004435 


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 general, under honorable conditions discharge be upgraded to an honorable discharge.  

2.  The applicant states that he was given a general, under honorable conditions discharge because he was late paying some bills.  He was having trouble with his wife at the time.  He has since taken care of all of his outstanding bills and would like to have his discharge changed to honorable.  He further states he was told by counsel from the Judge Advocate General's Corps that he should not have been given a general discharge for such a minor infraction.

3.  The applicant provides no additional documents in support of his 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 enlisted in the Regular Army (RA) on 18 September 1985 for a period of four years.  At the completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 31C (single channel radio operator).  He served in Germany from April 1986 to March 1988.  His highest grade held was specialist four (SP4)/E-4.

3.  His service personnel records contain a Fort Hood (FH) Form 2530 (Notification of Approval/Disapproval of Army Emergency Relief (AER) Application) which shows he had applied to the AER on 17 October 1988 for financial assistance with his rent.  

4.  On various occasions between December 1988 and March 1989, the applicant was counseled regarding his indebtedness problems.  In each case the applicant acknowledged receipt and concurred with the contents of the counseling without comment.

5.  On 23 March 1989, the applicant was barred from reenlistment.  His company commander indicated that the applicant was counseled on five separate occasions for indebtedness problems.  

6.  On 5 April 1989, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13 for unsatisfactory performance.  He was advised of his rights.  He acknowledged notification of the separation action, he consulted with legal counsel, and he did not submit statements in his own behalf.  

7.  On 10 April 1989, the appropriate separation authority waived a rehabilitative transfer; approved the separation action under the provisions of Army Regulation 635-200, chapter 13; and directed issuance of a General Discharge Certificate.

8.  Accordingly, the applicant was discharged from active duty on 18 April 1989 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He completed 3 years, 7 months, and 1 day of active military service with no days of lost time.  There is no record of disciplinary actions in the applicant's service personnel records.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded the Army Achievement Medal, Army Good Conduct Medal, Army Service Ribbon, Overseas Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar.  
10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, will be unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

12.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he was given a general, under honorable conditions discharge because he was late paying some bills and since that time he has taken care of all of his outstanding bills and would like to have his discharge changed to honorable.  After a careful review of the applicant's overall military record, it appears that there are several mitigating factors that would merit an upgrade of his characterization of service to fully honorable.  

2.  Although the applicant's service records show that he received adverse counseling statements regarding his indebtedness problems, there is no record of any disciplinary actions taken.  

3.  It appears that the applicant's indebtedness problems occurred only during a brief period of his service.  During the applicant's tenure on active duty, the applicant was a good Soldier as evidenced by his advancement to SP4 and award of the Army Achievement Medal and the Good Conduct Medal.

4.  In view of the applicant's overall meritorious record, his indebtedness, while an appropriate basis for discharge, should not overshadow his otherwise honorable service.  Therefore, it would be equitable to upgrade his general under honorable conditions discharge to fully honorable.  

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.  voiding the applicant's current DD Form 214 for the period ending 18 April 1985;
   
   b.  issuing the applicant a new DD Form 214 to reflect his character of service as "honorable"; and
   
   c.  issuing the applicant an Honorable Discharge Certificate with a discharge date of 18 April 1989.



      _________XXX______________
               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)                                         AR20090004435



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ABCMR Record of Proceedings (cont)                                         AR20090004435



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