IN THE CASE OF:	  

		BOARD DATE:	    8 December 2009

		DOCKET NUMBER:  AR20090011914 


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 an honorable discharge.

2.  The applicant states, in effect, that he received his general discharge, under honorable conditions due to financial indebtedness caused by failure to make payments on a home.  He states that prior to his financial troubles he had 8 years of honorable service.  He states he would like to be eligible for Veteran's benefits based on his good years of service and to have the stigma of his discharge characterization removed from his records. 

3.  The applicant does not provide any supporting 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 on 3 December 1970 for a 3-year period of service.  He successfully completed basic and advanced individual training.  He was awarded military occupational specialty 72B (Communication Center Specialist).  The highest rank he attained while on active duty was staff sergeant/pay grade E-6.

3.  A review of the applicant's Official Military Personnel File (OMPF) shows a serious pattern of writing and presenting checks for payment with insufficient funds his bank checking accounts.  There are no Uniform Code of Military Justice actions in his OMPF.

4.  On 12 September 1980, the applicant's check cashing privileges were suspended for 6 months. 

5.  On 15 April 1981, the applicant's check cashing privileges were suspended for 3 years. 

6.  On 15 October 1981, the applicant's outgoing commander from his overseas permanent station location wrote to the applicant's new commanding officer at the U.S. Army Signal School, Fort Gordon, GA.  The subject of this officer's letter was to inform the applicant's gaining commander that the applicant was a substandard performer who required constant supervision and that he mismanaged his personal finances.  

7.  On 10 January 1985, the applicant's commander notified him that action was being initiated to separate him from the Regular Army because of a pattern of misconduct, personal indebtedness, and mismanagement of personal finances.  The commander advised the applicant of his right to submit statements in his own behalf to the board, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  The commander also advised the applicant that the proposed separation action could result in an under other than honorable conditions discharge. 

8.  Accordingly, the applicant met with counsel.  He requested a personal appearance before a board of officers.  He acknowledged that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He also acknowledged he may be ineligible for many or all benefits as a Veteran under Federal and state laws and 
that he could expect to encounter substantial prejudice in civilian life.  He acknowledged that he could be temporarily or permanently ineligible to apply for reenlistment in the U.S. Army. 

9.  On 15 January 1985, the applicant received a second notification that his check cashing privileges were suspended for an additional 3 years. 

10.  On 18 January 1985, the applicant was found medically qualified for separation.  The applicant's mental health evaluation shows that he had the mental capacity to understand and participate in separation proceedings, that he was mentally responsible, and that he meet the retention requirements of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).

11.  On 6 February 1985, the applicant's company commander recommended that the applicant be discharged prior to his expiration of his term of service under the provisions of paragraph 14-12b, chapter 14, Army Regulation 635-200 (Enlisted Separations) for a pattern of misconduct.

12.  On 13 February 1985, the intermediate commander recommended that the applicant be considered for administrative separation action by a board of officers.

13.  On 20 February 1985, the appropriate authority approved the recommendation to board the applicant for administrative separation.  The approval authority directed that board procedures be governed by Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) and Army Regulation 635-200.    

14.  On 21 February 1985, the applicant received notification and acknowledged that he would appear before a Board of Officers to determine if he should be eliminated from the military service due to a pattern of misconduct.  He was advised that witnesses would be called forward to provide testimony and that a Trial Defense Lawyer would be appointed as his counsel.

15.  On 2 April 1985, a Board of Officers was convened.  The applicant and his counsel were present.  The applicant was advised of his right to cross-examine any witness called before the board.  After the presentation of evidence and witnesses, the Board of Officers found that the preponderance of evidence indicated a pattern of misconduct and recommended that the applicant be separated and that he be issued a discharge under honorable conditions.


16.  On 16 May 1985, the acting commanding general waived the rehabilitation requirements, approved the separation recommendation of the Board of Officers, and directed that the applicant be separated from the U.S. Army under the provisions of chapter 14, Army Regulation 635-200, with a general discharge.

17.  On 3 August 1985, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of a pattern of misconduct with a general discharge.  He had completed 5 years, 8 months, and 25 days of active service during this period of service.  He had completed a total of 14 years, 5 months, and 21 days of total active service.

18.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the board's 15-year statute of limitations.

19.  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, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  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 the regulation.

20.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

21.  Army Regulation 635-200 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 contends his discharge should be upgraded due to the 8 years of honorable service that he completed before he experienced financial troubles.   

2.  The applicant received a general discharge under honorable conditions when a discharge under other than honorable conditions was normally appropriate under the provisions of chapter 14 of Army Regulation 635-200.  Therefore, it is apparent the applicant's separation board took into consideration his overall record of service.

3.  Evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The available records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  The applicant's entire record of service was considered and it is evident that he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 

5.  The ABCMR does not upgrade discharges based solely on the passage of time or to make an applicant eligible for VA benefits.  

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)                                         AR20090011914



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ABCMR Record of Proceedings (cont)                                         AR20090011914



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