BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090005862 


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 discharge under honorable conditions that was issued on 17 April 1992 be upgraded to a fully honorable discharge and that the narrative reason for separation be changed from misconduct to something more favorable.

2.  The applicant states that his actions should not have been characterized as misconduct since he had no history of misconduct and that he signed a waiver requesting to be discharged due to indebtedness caused by his wife at the time. He also states that he wants to return to active duty to finish his service.

3.  The applicant provides an undated self-authored statement, a copy of the separation recommendation and approval memorandum, and a promotion order for sergeant first class (SFC) in support of his request. 

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 records show he enlisted in the Regular Army for a period of 4 years on xxx.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63H (Track Vehicle Repairer).  His records also show he executed a 6-year reenlistment on 1 November 1984 and a 4-year reenlistment on 12 March 1992.  He was promoted through the ranks to staff sergeant (SSG)/E-6 on 8 August 1986 and SFC/E-7 on 1 August 1990.

3.  The applicant’s records also show he completed two overseas tours in Germany from June 1981 to May 1984 and June 1989 to May 1992.  His records further show he was awarded the Army Achievement Medal (3rd Oak Leaf Cluster), the Army Commendation Medal, the Army Service Ribbon, the Good Conduct Medal, the Meritorious Service Medal, the National Defense Service Medal, the Overseas Service Ribbon with Numeral 2, and the Driver and Mechanic Badge. 

4.  The applicant’s records contain an extensive history of indebtedness extending from 1989 to 1993 and included multiple checks for insufficient funds. His records contain checks that were drawn against closed accounts, dishonored checks, multiple letters of indebtedness to various military and civilian vendors and merchants, overdue bills, collection agency notices, and delinquent allotments.  His records also contain several counseling statements from members of his chain of command regarding his financial responsibilities.  

5.  On 16 November 1993, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations) for a pattern of misconduct.  The specific basis of the recommendation was the applicant’s dishonored checks and failure to pay just debt.  The commander recommended the applicant receive an under other than honorable conditions discharge.

6.  On 16 November 1993, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, and of the procedures/rights that were available to him.  He requested consideration of his case by a separation board and a personal appearance before a separation board, and submitted a statement on his own behalf.  He was eligible to have his case considered by a separation board since he had more than 6 years of service and he was being recommended for an under other than honorable conditions discharge.

7.  On 16 November 1993, the applicant reconsidered his decision and submitted a conditional waiver in which he voluntarily waived consideration of his case by an administrative board contingent upon receiving a characterization of service no less than under honorable conditions (general).  The applicant further indicated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

8.  In a letter dated 17 November 1993, the applicant stated that due to a recent divorce he was left with all the bills and little money to pay them.  Too many creditors called his job.

9.  On an unknown date in November 1993, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for a pattern of misconduct and recommended that he be issued an other than honorable conditions discharge.

10.  On an unknown date in November 1993, the applicant’s intermediate commander reviewed the separation recommendation and recommended approval with a general discharge under honorable conditions. 

11.  On 28 November 1993, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of patterns of misconduct and directed the applicant be furnished a general discharge under honorable conditions.  He was accordingly discharged on 6 December 1993.  The DD Form 214 he was issued confirms he was discharged with a character of service of under honorable conditions (general). He had completed 12 years, 11 months, and 1 day of creditable active military service.  Item 25 (Narrative Reason for Separation) of this form shows the entry "Misconduct," item 26 (Separation Code) shows the entry "JKQ," and item 27 (Reentry Code) shows the entry "3."

12.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 
15-year statute of limitations.


13.  In his self-authored statement, the applicant indicates that his financial difficulties resulted from his wife having a power of attorney.  The applicant and his wife were undergoing a divorce.  She was bitter and wanted to destroy his career; therefore, she wrote a lot of bad checks.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include 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 absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  The separation reason in all separations authorized by this paragraph will be “misconduct.”  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.  

15.  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 contends that his discharge should be upgraded and the narrative reason for his separation should be changed.

2.  The applicant's record of service shows he had an extensive history of indebtedness.  He was counseled regarding his financial responsibilities as a noncommissioned officer but he does not appear to have responded positively as his indebtedness continued over a lengthy period of time.  Although he stated in a 17 November 1993 statement that he had recently been divorced and he had 

been left with all the bills, he did not mention at the time and he provides no evidence now to show that all of his indebtedness was caused by his wife at the time.  Accordingly, his chain of command initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant’s conduct was not consistent with Army standards.  The applicant’s misconduct with respect to not paying his just debts and failure to respond to counseling by members of the chain of command diminished the quality of his service, therefore, his discharge appropriately characterizes his service.

4.  The evidence of record confirms the applicant’s narrative reason for separation was assigned based on the fact that he was discharged under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct-indebtedness and dishonored checks.  The only valid narrative reason for separation permitted under this paragraph is "Misconduct" which is correctly shown on his DD Form 214.

5.  The ABCMR does not correct records solely for the purpose of establishing entitlements to other programs.  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 evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant relief in this case.

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)                                         AR20090005862



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ABCMR Record of Proceedings (cont)                                         AR20090005862



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