IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090017504 


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 upgrade of his general under honorable conditions discharge to a fully honorable discharge.

2.  The applicant states he would like to join the Air Force Reserve and he was told he needed to have his discharge upgraded.  He states he is more mature and responsible than in the past.

3.  The applicant states he always wanted to be a Soldier and then details information about his military service in his personal statement.  He states while at Fort Sill, OK it seemed that if he wasn’t in the field he was in a bar room.  He states he began getting into debt, he received an Article 15 for missing formation, and he was sent for credit counseling.  He states he doesn’t remember any other counseling but notes around November 1994 the Army had had enough and began separation processing.  He states shortly thereafter he received news that his grandfather had passed away and when his unit commander talked to him he was given a choice to be reassigned to Germany or get out.  The applicant states he chose to get out.

4.  The applicant states after returning home he continued his destructive path.  He was arrested and ultimately sought help and counseling with Alcoholics Anonymous.  Since then he met the woman who is now his wife, fathered two children, and worked two jobs so his wife could stay home and raise their children.  He states he always wanted to go back into the Reserve but he never 
had the support he has now.  When he talked to a recruiter he was told he needed to get his discharge upgraded.
5.  The applicant provides several character references, documents showing attendance at various seminars and training classes, his employment history, as well as a copy of his marriage certificate and copies of his children's birth certificates.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel offers nothing beyond that submitted by the applicant and “rest this case on the evidence of record.”

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 January 1991.  He successfully completed training, served 9 months in Europe, and he was advanced to pay grade E-4 prior to being assigned to Fort Sill in December 1991.

3.  The applicant continued to serve successfully, receiving an Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal, and a Driver and Mechanic Badge with Mechanic Bar.  In May 1993 he was permitted to reenlist for a period of four years.

4.  However, in the latter part of 1993, the applicant’s command began receiving letters of notification that the applicant was not paying his debts.  His records contain numerous counseling statements regarding his indebtedness.

5.  In May 1994, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his 
appointed place of duty.  His punishment included reduction to pay grade E-3.  By the end of May 1994, the applicant’s commander imposed a local bar to reenlistment against him based on his extensive history of indebtedness and failure to pay just debts.
6.  On 18 December 1994 the applicant acknowledged his unit commander was initiating action to administratively separate him from the Army for his ongoing pattern of indebtedness under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct.  The basis for the recommendation was the applicant’s disorderly conduct, driving under the influence, rendering false official statements, and attempting to defraud his insurance company.  The applicant consulted with counsel and waived his attendant rights.

7.  On 21 December 1994 the appropriate separation authority approved the discharge and directed the applicant be issued a general under honorable conditions discharge.

8.  On 29 December 1994 the applicant was accordingly discharged.  At the time of his separation he had completed 3 years, 11 months, and 27 days of active service.

9.  The statements submitted on behalf of the applicant all attest to his honesty and exemplary work ethic.  Documents submitted by the applicant in support of his request indicate he completed numerous training courses and attended a variety of seminars since his 1994 discharge.  In February 1998 he married his current spouse.  His children were born in August 1998 and March 2002.

10.  In 1999 the Army Discharge Review Board denied the applicant’s petition to upgrade the characterization of his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes 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 will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.

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’s contentions have been noted; however, it is apparent the applicant’s discharge was based on his overall performance during the period of military service.  The fact he was given a general discharge suggests his commander and the separation authority likely considered the applicant’s length of service and prior achievements when determining the characterization of service the applicant would receive.  That service and those achievements are also evidence the applicant was capable of fully honorable service.

2.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  The evidence shows the applicant’s misconduct diminished the quality of his overall service below that meriting a fully honorable discharge.  He was properly separated for his misconduct and he has submitted neither probative evidence nor a convincing argument in support of his request.

3.  The applicant’s contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading the characterization of one’s service nor is one’s desire to serve in the military.

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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090017504



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ABCMR Record of Proceedings (cont)                                         AR20090017504



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