IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100023350 


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 correction of item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states upon his return from Saudi Arabia he and his wife separated.  His financial situation deteriorated and he was in so much debt that he was forced to move on base.  He sought counseling from his first sergeant (1SG) but it did not help.  He tried to get squared away but the situation never improved.  He requested a discharge as the drawdown was taking place and his command let him go.  He did not know item 18 [of his DD Form 214] indicated he committed a serious offense.  If he had known this he would have finished his last 8 months in the Army and he would have received an honorable discharge.  He was busted from E-3 to E-2 for an incident that occurred in Bahrain during Desert Storm but he had regained his rank by the time he returned and he made E-4 soon afterwards.  He requests the Army Board for Correction of Military Records (ABCMR) look into his service record to verify his suspicion that this is a clerical error and correct his record by issuing him a DD Form 215 (Correction to DD Form 214).

3.  The applicant provides his DD Form 214.





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 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 on 24 November 1989 and he held military occupational specialty 31L (Wire Systems Installer).  He served in Southwest Asia from 17 June to 1 December 1991 while assigned to the National Training Center (NTC) Signal Company, Fort Irwin, CA.  

3.  He was counseled by his chain of command on several occasions between September and December 1992 for failing to pay his debts.  On 11 December 1992, his 1SG counseled him using DA Form 4856 (General Counseling Form) for repeatedly failing to pay his debts.  The counseling form states the applicant still had not paid his debts after promising to pay the sum of $150 since 1 October 1992.  Failing to pay his debts would not be tolerated in the unit, the applicant was being counseled for misconduct, and if the conduct continued it could be cause for Uniform Code of Military Justice action, bar to reenlistment, and/or administrative separation action.

4.  On 4 March 1993, he underwent a mental status evaluation at the request of his immediate commander.  An NTC Form 1-41 (Unit Commander's Request for Psychiatric Evaluation) shows a psychiatric evaluation was requested for the purpose of separating the applicant under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The commander indicated the applicant's positive traits were that he was cooperative and he had an excessive desire for discharge.  He also indicated the applicant was a problem to the unit because of difficulty with officers and noncommissioned officers, continuous infractions of rules, resentment towards discipline, excessive use of alcohol, and excessive indebtedness.



5.  The examining psychiatrist noted the applicant had no evidence of an emotional or mental disorder or a psychiatric condition which would have warranted disposition through medical channels and he noted the applicant was psychiatrically cleared for any administrative action deemed appropriate by the command.

6.  On 15 March 1993, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense, specifically for wrongfully and dishonorably failing to pay his debts.

7.  On 15 March 1993, he acknowledged receipt of the notification of his proposed discharge from the Army.  He was advised of the basis for the contemplated separation from the Army, the effect on future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  

8.  In a statement written on his own behalf, the applicant states while he was deployed to Saudi Arabia his wife ran up debts in his absence and she left him 3 weeks after his return.  He was sorry for his actions and requests his discharge be characterized as honorable as a general discharge would negatively impact him and his family.

9.  On 25 March 1993, the separation authority approved his discharge under Army Regulation 635-200, paragraph 14-12c, misconduct - commission of a serious offense and directed that he be issued a General Discharge Certificate.  On 30 March 1992, he was discharged accordingly.

10.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense, in the rank/grade of SP4/E-4 with a general discharge.

11.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the Army Service Ribbon, National Defense Service Medal, Army Achievement Medal, Southwest Asia Service Medal with three bronze service stars, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).




12.  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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct that a general discharge be issued if such is merited by the Soldier's overall record.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of JKQ is the correct code for Soldiers separating under paragraph 14-12c, of Army Regulation 635-200 by reason of misconduct - commission of a serious offense.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he was discharged on 30 March 1993 under the provisions of paragraph 14-12c, of Army Regulation 635-200 by reason of misconduct - commission of a serious offense.  The evidence of record shows he was fully aware of the reason for his recommended discharge.  Since this was not a voluntary separation, he would not have had the option to finish his last 8 months in the Army.

2.  The applicant's narrative reason for separation was assigned based on his separation under the provisions of paragraph 14-12c of Army Regulation 635-200 due to his repeated failure to pay his debts.  The only valid narrative reason for separation permitted under this paragraph is "misconduct - commission of a serious offense" which is correctly shown on his DD Form 214.  Therefore, he received the appropriate narrative reason for separation and is not entitled to the requested relief.

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)                                         AR20100023350



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ABCMR Record of Proceedings (cont)                                         AR20100023350



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