BOARD DATE:	  17 November 2011

		DOCKET NUMBER:  AR20110010412 


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 reconsideration of his earlier request for an upgrade of his general discharge under honorable conditions to fully honorable.

2.  As new issues, the applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

* item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) to add the Overseas Service Ribbon, Army Commendation Medal, and Army Achievement Medal (2nd Award)
* item 25 (Separation Authority) to show paragraph 14-12b instead of paragraph 14-12c(1) of Army Regulation 635-200 (Personnel Separations)

3.  The applicant states:

* the basis of his discharge was indebtedness, not misconduct, and there was no effort made to rehabilitate him 
* the separation authority could have suspended the separation and authorized a probationary period
* the separation authority is incorrectly shown on his DD Form 214 and the awards are not listed

4.  The applicant provides no additional evidence.


CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090017504 on 25 May 2010.

2.  The applicant did not provide any new evidence.  However, he provides a new argument, which was not previously considered by the ABCMR and, as such, warrants consideration by the Board as an exception to policy.

3.  The applicant's records show he enlisted in the Regular Army on 3 January 1991 and he held military occupational specialty 63D (Propelled Field Artillery System Mechanic).  He executed a 4-year reenlistment on 4 May 1993 and he attained the rank/grade of specialist/E-4.

4.  He served in Germany for 9 months from 5 June 1991 to 4 March 1992.  He was assigned to the Service Battery, 4th Battalion, 3rd Field Artillery, 2nd Armored Division (Forward).

5.  On 19 December 1991, Headquarters, 4th Battalion, 3rd Field Artillery, published Permanent Order Number 135-012 awarding him the Army Achievement Medal for commendable service.

6.  On 1 February 1992, Headquarters, 2nd Armored Division, published Permanent Order Number 020-044 awarding him the Army Commendation Medal for commendable service.

7.  He was reassigned to the 2nd Battalion, 17th Field Artillery, Fort Sill, OK, on or about 4 March 1992.

8.  On 25 May 1993, Headquarters, 212th Field Artillery Brigade, Fort Sill, published Permanent Order Number 029-20 awarding him the Army Achievement Medal for meritorious achievement.

9.  In the latter part of 1993, his chain of command began receiving letters of notification that the applicant was not paying his debts.  His records contain a voluminous number of letters of indebtedness as well as numerous counseling statements regarding his indebtedness.  These letters include:

* An overdrawn checking account at the Fort Sill National bank of $280.25
* A debt t Alpha Credit Corporation in the amount of $144.10
* Overdue utility accounts of $241.45
* Overdue payment to Wolverton Furniture in the amount of $301.82
* Bad check at Herbs Food Incorporated in the amount of $25.79
* Three debts to Consumer Adjustment Corporation in the amounts of $1,889.04, $2,2203.68, and $799.90
* Multiple other debts

10.  On 15 May 1994, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

11.  On 18 May 1994, his immediate commander imposed a local bar to reenlistment against him based on his extensive history of indebtedness and failure to pay just debts.  He was provided with a copy of this bar but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by the appropriate authority.

12.  On 18 December 1994, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 for misconduct – commission of a serious offense.  The basis for the recommendation was the applicant's ongoing pattern of indebtedness.  The immediate commander recommended a general discharge.

13.  On 18 December 1994, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him.  He elected not to submit a statement on his own behalf.

14.  The applicant further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

15.  Subsequent to this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 for misconduct due to his ongoing pattern of indebtedness.  The immediate commander recommended he receive an under honorable conditions character of service.

16.  On 21 December 1994, the separation authority waived the requirements for rehabilitative transfer and approved the applicant's discharge under the provisions of paragraph 14-12c of Army Regulation 635-200 by reason of misconduct and directed the applicant be furnished a general discharge under honorable conditions.  Accordingly, the applicant was discharged on 29 December 1994.

17.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct with an under honorable conditions character of service.  This form also confirms he completed a total of 3 years, 11 months, and 27 days of creditable military service.  Additionally, this form shows in:

	a.  item 13, the Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Marksmanship Qualification Badge with Grenade Bar, Driver and Mechanic Badge with Mechanic Bar, and Expert Marksmanship Qualification Badge with Grenade Launcher Bar (M-249).

	b.  item 25, the entry "Army Regulation 635-200, paragraph 14-12c(1)."

18.  On 4 January 1999, the Army Discharge Review Board denied the applicant's petition to upgrade the character of his discharge.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included 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 might direct a general discharge if such was merited by the Soldier's overall record.

	a.  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.

	b.  Paragraph 14-12(a) provides for separation for minor disciplinary infractions – a pattern of misconduct consisting solely of minor military disciplinary infractions.

	c.  Paragraph 14-12(b) provides for separation for a pattern of misconduct.  A pattern of misconduct consists of discreditable involvement with civil or military authorities and/or conduct prejudicial to good order and discipline.  Discreditable conduct and conduct prejudicial to good order and discipline includes conduct that violates accepted standards of personal conduct found in the UCMJ, Army regulations, civil law, and time-honored customs and traditions of the Army.

	d.  Paragraph 14-12(c) provides for separation for commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely-related offense under the Manual of Courts-Martial (MCM).  The MCM states article 134 (Check, worthless, making and uttering - by dishonorably failing to maintain funds) provides for a maximum punishment of a bad conduct discharge, a forfeiture of all pay and allowances, and confinement for 6 months.

20.  Army Regulation 600-8-22 (Military Awards) states the Overseas Service Ribbon is awarded to all members of the Active Army, Army National Guard, and U.S. Army Reserve in an active Reserve status for successful completion of overseas tours.  Credit for an overseas tour in Germany requires completion of 36 months with dependents and 24 months without dependents.

DISCUSSION AND CONCLUSIONS:

1.  Permanent orders awarded the applicant the Army Commendation Medal and two awards of the Army Achievement Medal.  None of these awards are listed on his DD Form 214.  Therefore, he is entitled to correction of his DD Form 214 to show these awards.

2.  The applicant completed 9 months of foreign service in Germany.  This period of foreign service is insufficient to award him the Overseas Service Ribbon as he was not credited with tour completion.  Therefore, he is not entitled to this award.

3.  The applicant's service was marred by misconduct that included one instance of nonjudicial punishment, a bar to reenlistment, disorderly conduct, and multiple letters of indebtedness.  Accordingly, his chain of command initiated separation action against him.

4.  The applicant committed a violation of the MCM that could have resulted in a bad conduct discharge.  Under regulatory guidance, his indebtedness was a serious offense.  The separation authority approved the discharge based on the applicant's serious offense.  The appropriate paragraph in Army Regulation 635-200 that corresponds to a serious offense is paragraph 12-14c which is listed in item 25 of his DD Form 214.

5.  The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

6.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

7.  The separation authority is not required to grant a Soldier a rehabilitative transfer.  The regulation authorizes the separation authority to waive rehabilitation efforts if he/she believes such transfer would not produce the quality Soldier desired by the Army.  The separation authority clearly indicated he did not believe the applicant would have become productive and as such waived any rehabilitative transfer.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___x__  ____x____  ____x____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  With respect to the character of service upgrade, the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090017504, dated 25 May 2010.

2.  With respect to the new issues (awards and separation authority), the Board determined the evidence presented is sufficient to warrant a recommendation for 
partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Army Commendation Medal and the Army Achievement Medal (2nd Award) to his DD Form 214.

3.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the Overseas Service Ribbon and the separation authority.



      __________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)                                         AR20110010412



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ABCMR Record of Proceedings (cont)                                         AR20110010412



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