IN THE CASE OF:	  

		BOARD DATE:	    4 August 2011

		DOCKET NUMBER:  AR20110001225 


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 an upgrade of his general under honorable conditions discharge to an honorable discharge.

2.  The applicant states he made a mistake regarding the use of a phone card and this was used for the purpose of discharge.

3.  The applicant provides no additional evidence.

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 on 5 May 1982 and he held military occupational specialty (MOS) 19E (Armor Crewman).    

3.  On 2 October 1987, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty. 

4.  He was assigned to the U.S. Army Recruiting Battalion Pittsburgh, PA, in duty MOS 00R (Recruiter) on 19 December 1988.  He was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 May 1989.

5.  Between July 1989 and October 1989, he was frequently counseled by several members of his chain of command for repeatedly failing to pay his debts.  On 10 October 1989, he was counseled for falsifying official forms, disobeying a direct order, being absent without leave, seeking outside employment without permission, and missing formation.

6.  On 30 October 1989, his immediate commander recommended that he be barred from reenlistment.  The commander cited the applicant’s repeatedly failing to pay his debts and he disobeyed orders given by the commander and first sergeant.  On 27 November 1989, the bar to reenlistment was approved by the chain of command and placed in his records.

7.  On 24 April 1990, he was convicted by a Maryland District Court of obtaining services under false pretenses by the unauthorized use of his immediate supervisor's personal telephone credit card.

8.  On 19 June 1990, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) for misconduct, specifically for conviction of a civil offense and mismanagement of his personal finances by failing to pay his debts.

9.  On 19 June 1990, he acknowledged receipt of the notification of his proposed discharge action.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the possible effects of an under other than honorable conditions discharge, and a general discharge.  He was also advised of the procedures and rights that were available to him.  He acknowledged he understood if he were issued an under other than honorable conditions discharge he could expect to encounter prejudice in civilian life.  He requested consideration of his case by an administrative separation board.

10.  On 23 July 1990, his chain of command recommended that he be separated under the provisions of Army Regulation 635-200 for misconduct with the issuance of an other than honorable conditions discharge.
11.  On 10 September 1990, an administrative separation board convened to determine if the applicant should be discharged under the provisions of chapter 14 of Army Regulation 635-200.  The board found that the applicant had been convicted by civil authorities in Maryland and recommended that he be separated from the Army due to civil conviction with the issuance of a General Discharge Certificate.

12.  On 22 October 1990, the separation authority accepted the findings and recommendations of the board of officers and approved his discharge under the provisions of chapter 14-5, Army Regulation 635-200, for civil conviction and directed the issuance of a General Discharge Certificate.  On 1 November 1990, he was discharged accordingly.

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged in the rank of SSG under the provisions of chapter 14, Army Regulation 635-200, by reason of civil conviction with a general discharge.  He completed a total of 8 years, 5 months, and 27 days of creditable active service.

14.  On 12 December 1996, the Army Discharge Review Board determined he was properly and equitably discharged and denied his request for an upgrade of his discharge.

15.  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.

16.  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 evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the numerous counseling statements he received for failure to pay his debts and his civil conviction for obtaining services under false pretenses.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation therefore were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an honorable discharge.

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)                                         AR20110001225



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ABCMR Record of Proceedings (cont)                                         AR20110001225



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