IN THE CASE OF:	  

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20120001892 


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 discharge to an honorable discharge.

2.  The applicant states:

	a.  When he returned from Operation Desert Shield/Desert Storm he learned his wife had accumulated an abundance of debt and written numerous bad checks on the base.  While he was away, she also spent all the funds he had earned, so he could not immediately remedy the situation.  A few weeks after coming home he was called to his first sergeant's office and handed a bunch of pink slips showing one debt after another.  He was lectured on how it was still his responsibility.

	b.  He was advised by his first sergeant of being discharged with severance pay, which he accepted and used the money to pay his debts and to move on.  He was young at the time and submitted to his authorities; he just yielded to their best assessment as to what he should do.  He thought it was decent that the first sergeant was allowing him to collect payment in order to resolve the debt.  However, he was disappointed that he was issued a general discharge and its future limitations that he now hopes to remedy.

	c.  He is seeking an upgrade so he can use his GI Bill benefits for college and his Department of Veterans Affairs (VA) certificate to purchase a home.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* General Discharge Certificate
* Standard Forms (SF) 88 (Report of Medical Examination) and 93 (Report of Medical History)

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 (RA) on 1 November 1989 in pay grade E-1 for a period of 4 years.  He was 17 years, 11 months, and 29 days of age at the time of his enlistment.  He completed training and he was awarded military occupational specialty (MOS) 31M (Multichannel Communications Systems Operator).

3.  He served in Saudi Arabia from 1 September 1990 through 2 April 1991.  He was promoted to pay grade E-4 on 1 January 1992.

4.  He received counseling between June and July 1992 for:

* financial problems
* continuing to work on paying off his debt
* lying on several occasions pertaining to his Kevlar
* arrested for failing to appear in court for failing to surrender furniture that he had not made payment for
* elimination from the service
* inspection shortcomings
* sense of duty
* failing to maintain his TA-50 for cleanliness and serviceability
* initiation of administrative action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 13
* writing bad checks
* non-payment of rent on 17 July 1992
* continued unsatisfactory conduct and processing for separation

5.  On 21 September 1992, the applicant's company commander initiated action to separate him for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13, with a general discharge.

6.  On 21 September 1992, after consulting with counsel, the applicant acknowledged the proposed separation action under the provisions of Army Regulation 635-200, chapter 13, and of the rights available to him.  He waived his right to have his case heard before a board of officers and elected not to submit a statement in his own behalf.  He also acknowledged he understood he may be given an honorable or a general discharge if eliminated from the service. He further acknowledged that if he receives a general discharge he may make application to the Army Discharge Review Board (ADRB) for the ABCMR for upgrading; however, he realizes that an act of consideration by either board does not imply that his discharge would be upgraded.

7.  On 21 September 1992, the applicant’s company commander recommended the applicant be separated from the service for unsatisfactory performance under the provisions of Army Regulation 635-200, paragraph 13-2a.

8.  On 28 September 1992, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, with issuance of a general discharge.

9.  On 5 October 1992, he was discharged accordingly.  He completed 2 years, 11 months, and 5 days of creditable active service with no time lost.

10.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 provided the policy and outlined the procedures for separating individuals for unsatisfactory performance. 
Service of individuals separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions (general) as warranted by their military records.

12.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Title 10, U.S. Code, section 1174, states a regular enlisted member of the armed forces who is discharged involuntarily or as the result of the denial of the reenlistment and who has completed 6 years or more, but less than 20 years of active service immediately before the discharge is entitled to separation pay.

DISCUSSION AND CONCLUSIONS:

1.  His contentions were carefully considered; however, based on the available evidence, there is no basis for upgrading his discharge from a general discharge to a fully honorable discharge.  He has submitted neither probative evidence nor a convincing argument to support the requested relief.  He has also provided no evidence sufficient to mitigate the character of his service.

2.  He also acknowledged he understood the reason for his discharge and that he might be issued a general discharge.  His repeated unsatisfactory performance, which included more than just indebtedness, diminished the quality of his service below that meriting a fully honorable discharge.  

3.  In the absence of evidence to the contrary, it appears his discharge processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons were appropriate considering the facts of the case.  He was properly discharged and he has not shown otherwise.

4.  The ABCMR also does not grant relief solely for the purpose of an individual qualifying for benefits administered by the VA.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120001892



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120001892



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1