IN THE CASE OF:	  

		BOARD DATE:	        3 September 2009

		DOCKET NUMBER:  AR20090008084 


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 be upgraded to a fully honorable discharge.

2.  The applicant states that his discharge was inequitable because it was based on an incident prior to his discharge with no other adverse action taken.  He also states that he is trying to enter the Air National Guard.

3.  The applicant provides no additional documents with 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 on 26 April 1989 for a period of 4 years and training as a Patriot Operator/Systems Mechanic.  He completed his basic training at Fort Sill, Oklahoma, and was transferred to Fort Bliss, Texas, to undergo his advanced individual training (AIT).  He completed his AIT and remained assigned to Fort Bliss with deployment to Southwest Asia from 14 August 1990 to 8 March 1991.  He was promoted to the pay grade of E-5 on 1 August 1991.

3.  On 8 August 1991, he reenlisted for a period of 6 years and a selective reenlistment bonus.

4.  On 24 November 1991, he was transferred to Germany for assignment to a Patriot battery.

5.  On 16 October 1992, the applicant's commander initiated a recommendation to bar the applicant from reenlistment.  He cited as the basis for his recommendation that the applicant had two incidents of domestic disturbances; that he failed to manage his personal, marital, and financial affairs; that he had been administered nonjudical punishment on 28 July 1992; and that he had failed to pay his just debts (writing bad checks).  The applicant elected not to submit matters in his own behalf and the battalion commander approved the bar to reenlistment on 22 October 1992.  On 21 April 1993, the commander reviewed the bar to reenlistment and recommended that it remain in effect because the applicant continued to write bad checks.

6.  On 18 June 1993, the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13, for unsatisfactory performance.  He cited as the basis for his recommendation the applicant's failure to pay his just debts, writing bad checks, failure to go to his place of duty on several occasions, failure of a physical security inspection, spouse abuse problems (applicant was married to another service member), and failure of the battalion Air Defense 4C test three times.

7.  After consulting with counsel, the applicant elected to submit a statement in his own behalf wherein he requested that the commander give him an honorable discharge so that he would be eligible for benefits after his discharge.  He contended that he had given 110-percent effort; however, he was unable to prevent his personal problems from interfering with his military career.

8.  On 28 June 1993, the appropriate authority approved the recommendation for discharge and directed that he be furnished a General Discharge Certificate.

9.  Accordingly, he was discharged under honorable conditions on 9 July 1993 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had served 4 years, 2 months, and 14 days of total active service.

10.  There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service.  An individual could be separated for unsatisfactory performance if it was determined that the member would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.  A discharge under honorable conditions is normally considered appropriate.

12.  Paragraph 3-7 of Army Regulation 635-200 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.  

13.  Paragraph 3-7b also provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation under the provisions of Army Regulation 635-200, chapter 13, was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

3.  The applicant’s contentions have been noted; however, they are not supported by the evidence of record and are not sufficiently mitigating to warrant relief when compared to his overall record of service and the number of repeated offenses he committed.  His service simply does not rise to the level of a fully honorable discharge.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned 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)                                         AR20090008084



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ABCMR Record of Proceedings (cont)                                         AR20090008084



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