IN THE CASE OF:	  

		BOARD DATE:	  12 May 2015

		DOCKET NUMBER:  AR20140015113 


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 that her general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that she never received any bad reports from her noncommissioned officers (NCOs) or the officers she worked with in the dental clinic.  She was always one of the first to arrive and the last to leave in the evening.  She believes that some issues her ex-husband (a civilian) caused at the time came back on her and led to her discharge.  She planned to stay in Germany so her unit could train her to be a dental hygienist, but her husband did not want to stay and met with her headquarters commander to request a hardship discharge for her.  She loved that job and was good at it.  She never had a negative counseling with any of her NCOs, so the discharge was unwarranted.  She was never written up or penalized for anything and she was promoted on time, so she never understood why she was discharged.

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 12 April 1988.  Upon completion of initial entry training, she was awarded military occupational specialty 91E (Dental Specialist).  The highest rank/grade she attained while serving on active duty was private first class (PFC)/E-3.

3.  Her record contains a DA Form 4856 (General Counseling Form), dated 18 October 1988, which shows she was counseled regarding payment of an outstanding debt in the amount of $420.00 and the fact that she would not be granted stateside leave until she paid the debt.  She was advised that indebtedness is unacceptable and is unbecoming of a Soldier in the U.S. Army.  She was further advised to inform her NCO in charge (NCOIC) of any problems that she may have in the future so they could work together to find a solution.

4.  Her record contains a DA Form 4856, dated 4 January 1989, which shows she was counseled regarding payment of an outstanding debt in the amount of $106.12 and the fact that she was being referred to financial counseling.  The catalyst for this action was the fact that two letters had been received by the applicant's chain of command pertaining to the debt she had accrued by using someone else's telephone.

5.  On 4 January 1989, the applicant was command referred for financial/budget counseling.  On 20 January 1989, she executed a Financial Counseling Debt Liquidation Program Contract wherein she agreed to:

* Cooperate honestly and openly with the financial planner
* Keep or reschedule all appointments
* Perform all requests and keep all written and verbal agreements made with financial planner
* Meet agreed budget and payment schedule
* Discuss changes in budget and payment schedules with financial planner
* Get no additional credit or loans without the approval of the financial planner
* Termination of the contract if she:

* Failed to abide by this agreement
* Missed two appointments without rescheduling
* Separated from the military

6.  Her record contains a DA Form 4856, dated 30 March 1989, which shows she was counseled regarding:  check writing, dealing with duty in Germany without family members for the completion of her tour in Germany, getting no additional credit or loans without the approval of the financial planner, cooperating by performing all requests and keeping all written and verbal agreements made with the financial planner, communicating with her NCOIC and financial planner.  The applicant was advised that if she wrote another dishonored check her check cashing privileges could be suspended for 12 months and her identification card could be over stamped.  The NCOIC acknowledged that there would be a lot of stress on and off the job as the applicant adjusted to being without her family members and reminded her that her leaders were there to help.  The applicant was informed that failure to adhere to her Financial Counseling Debt Liquidation Program Contract would subject her to possible disciplinary action and possible administrative elimination from the service.  In closing, the applicant was advised to keep her leaders and the financial planner informed before it became a problem and that Soldiers are required to manage their personal affairs satisfactorily and pay their debts promptly.

7.  On 19 May 1989, the Army Community Service Financial Counselor provided the applicant's commander a report on her progress in the debt liquidation program.  The financial counselor informed the commander that the applicant's progress had been limited by her unwillingness to follow through with the contractual agreement she signed on 20 January 1989 and recommended that she be disenrolled from the program for failure to adhere to the contractual agreement by failing to:

* provide adequate information regarding indebtedness
* follow through with repayment schedule
* come prepared for financial counseling session

8.  On 7 June 1989, the Army Community Service Financial Coordinator informed the applicant's company commander that her contract had been terminated and she was disenrolled from the program because she had broken the budget counseling contract by continuing to buy on credit or borrowing money, or failing to cooperate with the agreed plan in some other way.

9.  The applicant's record contains a DA Form 4187 (Personnel Action), initiated 8 June 1989, which shows she requested a compassionate reassignment to Fort 


Sam Houston, TX due to extreme family problems.  She cited the following issues as reasons for her request:

	a.  Her spouse had complained of heart problems and needed hospitalization; however, that left no one else able to care for her eight-year old son.

	b.  Her spouse refused to be admitted to the hospital due to the above.

	c.  Her son was also having problems adjusting to her absence which added to the problems.

	d.  Being that her spouse was unemployed, she was the only one able to support her dependents financially and her presence was needed to help alleviate the problems that existed.

10.  The applicant stated that if the request was not favorably considered, she requested to be considered for a hardship discharge for the aforementioned reasons.  As proof of her husband's condition, she submitted a message from the American Red Cross that showed her husband requested her presence for the aforementioned reasons.  Brooke Army Medical Center, Fort Sam Houston, TX verified the applicant's husband was seen at the Emergency Room on 5 June 1989, but no case record was established because he walked out.  As a result, there was no way to verify his medical condition.  The applicant's NCOIC concurred with her request, but commander recommended disapproval.

11.  Her record contains a DA Form 4856, dated 18 August 1989, which shows she was counseled regarding her refusal to voluntarily change the amount of her allotment to a financial institution in order to enable her to pay the outstanding debts owed by her to debtors and to advise her that she was having a bar to reenlistment imposed upon her, which would be reviewed in 6 months.  After reviewing the applicant's debts and income, it was determined that with the amount that she owed and the amount that she received on a monthly basis, she did not have enough money to pay her debts.  Since she refused to voluntarily change the amount, the amount would be changed by a command decision.  The applicant also refused to sign the bar to reenlistment, which looked like apathy on her part.  The applicant was advised that further conduct of this nature could result in punitive action under the Uniform Code of Military Justice (UCMJ) and/or separation from the service.  Such a separation could result in characterization of her service as under other than honorable conditions.  If she received such a discharge, she would not be eligible for many benefits.

12.  A bar to reenlistment was imposed on the applicant on 18 August 1989.

13.  On 18 September 1989, the applicant's unit commander notified her that he was initiating action which could result in separation from the Army with a general discharge under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 12b, for a pattern of misconduct:  Persistent indebtedness and unwillingness to follow through with her contractual agreement with the Army Community Service Financial Counselor.  She was advised of her rights and the impact of the discharge.  She acknowledged receipt of the notification on the same day.  

14.  She consulted with legal counsel and was advised of the basis for the contemplated action to accomplish her separation for misconduct and its effects; the rights available to her; and the effects of any action taken by her in waiving her rights.  She elected to waive her rights to submit statements in her own behalf, but requested representation by military counsel.  She also indicated her understanding that if she received a discharge certificate or character of service which was less than honorable; she could expect to encounter substantial prejudice in civilian life.  She also understood that she could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, she realized that an act of consideration by either board did not imply that her discharge would be upgraded.

15.  The unit commander subsequently recommended that the applicant be separated from the service based on the aforementioned offenses.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with a general discharge under honorable conditions.

16.  The separation authority approved the applicant's separation and directed that the applicant be separated under the provisions of Army Regulation 635-200 Personnel separations enlisted personnel, chapter 14, paragraph 12b, for misconduct – pattern of misconduct and determined her service would be characterized as under honorable conditions and that she would be issued a General Discharge Certificate.

17.  On 24 October 1989, the applicant was discharged accordingly.  Her DD Form 214 shows:

* her service was characterized as under honorable conditions (General)
* she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b
* her narrative reason for separation was "Misconduct - Pattern of Misconduct"

18.  There is no evidence the applicant applied to the ADRB for an upgrade of her discharge within its 15-year statute of limitations.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct and provides that individuals identified as offenders may be separated prior to their normal date of expiration of term of service.  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.

20.  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 contention that her record should be corrected by upgrading her discharge to an honorable discharge was carefully considered and found to lack merit.

2.  Contrary to the applicant's claim that she never received adverse counseling, the evidence clearly shows that in spite of numerous counseling sessions and command referral to a financial counseling and debt liquidation program she refused to comply with the parameters of the program and continued to amass debt. 

3.  The fact that the applicant was experiencing family difficulties is not disputed, but the evidence clearly shows that her leaders offered to assist her with resolving the matters and she declined their recommendations.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized her rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects her overall record of service.

5.  Based on her record of indiscipline, the quality of the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel to warrant an honorable discharge.  Therefore, she is not entitled to an upgrade of her general discharge 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)                                         AR20140015113





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ABCMR Record of Proceedings (cont)                                         AR20140015113



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