RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 February 2005
      DOCKET NUMBER:  AR20040001426


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. William D. Powers             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his records be corrected to
show he completed 24 months of creditable active service and 4 years of
Individual Ready Reserve (IRR) service.

2.  The applicant states that he needs the correction to make him eligible
for the GI Bill and for the Department of Veterans Affairs (VA) Home Loan
Program.  He states that his discharge did not conform to Federal law or
Army regulations and doctrine.  He entered the Delayed Entry Program (DEP)
on 1 June 1989 which time, according to his contract, was to be credited
towards his service obligation but was not.  His service, other than minor
disciplinary infractions, was excellent. At one time, his command climate
was an environment full of opportunity and support was given to the Soldier
to achieve excellence.  Subsequently, the leadership changed and the
culture changed, to his detriment.

3.  The applicant states that the command became intoxicated with the power
it had and forgot about the enlisted Soldier.  He was subjected to
humiliating treatment and a corrosive environment where there was no
emphasis by the leadership to ensure the enlisted [Soldier] could reach his
or her full potential.  The policies in Army Regulation 635-200 and in
Title 10, U. S. Code, section 1142 were not followed.  He was never
afforded the opportunity to see a psychiatrist when the counseling did not
alleviate his problems.  His circumstances were recently addressed by a
special on the NBC program "Dateline" and provides an adequate description,
by analogy, of the way his unit operated in regards to resolving a
Soldier's problems and treating the emotional and psychological disorders
of its Soldiers.

4.  The applicant states that his service record was very good with two
exceptions – being 20 minutes late for duty and being absent without leave
(AWOL) for one day.  The AWOL, in hindsight, was due to medical reasons –
panic disorder with agoraphobia and major depressive episodes.  He sought
counseling and in all likelihood the disorder would have eventually been
discovered and treated properly by a psychiatrist but he was denied
psychiatric treatment.

5.  The applicant states that at his discharge his time in service was
calculated at 1 year, 9 months, and 5 days.  It did not include the 67 days
he served in the DEP.  Therefore, he was discharged 18 days short of having
the 24 months of active duty required for GI Bill participation and the
Home Loan Program.  Additionally, the improper order of not allowing him to
complete his Reserve time deprived him of the other service necessary to
qualify for the GI Bill.
6.  The applicant states that he participated in treatment for his
condition by engaging in regular counseling sessions but he was never
referred to a psychiatrist, did not receive a discharge physical, and the
environment wanted to apply adverse consequences instead of trying to
protect the welfare of a good Soldier.  Due to the adversarial nature and
lack of concern for his welfare and wellbeing, he requested a chapter 16
discharge to protect himself and requested he be allowed to complete his
reserve obligation.  He did not receive pre-separation counseling as
required by Federal law and Army regulation prior to his discharge, nor did
his chain of command follow the proper procedures according to law.  The
command did not explain the consequences to his benefits of such a
discharge.  The order [for him not to continue in the Reserve] was
initialed by someone other than the approving authority, contrary to
regulation.

7.  The applicant states that the policy outlined in Army Regulation 635-
200, paragraph 1-1(c)(1)(3) was not followed.  The regulation makes it
incumbent upon the leadership to make diligent efforts to identify Soldiers
who exhibit a likelihood for early separation and improve their chances for
retention through counseling, retraining, and rehabilitation prior to
initiation of separation proceedings.  He was not advised, in writing, of
the impact of his discharge upon his educational benefits.  Army Regulation
635-200, paragraph 1-20(c)(1)-(2) and Title 10, U. S. Code, section 1142
mandate that "Approval of separation under these provisions is contingent
upon this counseling, and a statement of understanding must be included in
the approval packet."  Army Regulation      635-200, paragraph 1-36(e) also
states that, when a soldier has a remaining Reserve obligation upon
discharge under chapter 16-5, discharge must be made "only when the
circumstances of the individual case clearly indicate that the soldier has
no potential for useful service under conditions of full mobilization"
(emphasis in the original.)

8.  The applicant states that he was never given the opportunity to make
his "case" regarding his transfer to the IRR.  The Army Discharge Review
Board (ADRB) specifically requested that he bring this matter to the
attention of the Army Board for Correction of Military Records (ABCMR).
His disciplinary infractions included counseling for being late four times,
an Article 15 for being 20 minutes late, an Article 15 for being AWOL one
day; and some money problems due to the fact his roommate left and stuck
him with the bills for an apartment.  However, he successfully completed
alcohol counseling, he attended mental health counseling for his emotional
issues, and he did ask the chain of command for help in regard to the unit
atmosphere.  He never had any problems with his job performance, his
physical training test scores were high, he was a team player, an expert
marksman, and he was quickly recommended for promotion to E-4 until that
was changed due to political considerations.

9.  The applicant provides his "discharge packet" to include his DD Form
214 (Certificate of Release or Discharge from Active Duty) and enlistment
contract; his ADRB packet; a summary of post-service accomplishments; a
letter of recommendation (to enter law school) dated 6 November 2003; two
Circuit Courts – Appellate legal digests; extracts from U. S. v. Krzyske
and Landry v. Roebuck (in which he states he assisted as a paralegal in
prepping the appellate attorney for oral argument); an extract from Dubis,
N.V. and Stor-All System, Inc. v. Metropolitan Dade County; his appeal to a
VA rating decision; and a transcript of a "Dateline" program, the subject
of which was two female soldiers (and other female soldiers) who had been
raped by American soldiers.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the Army Board for Correction of
Military Records (ABCMR) resolve any error or injustice raised by the
applicant.

2.  Counsel states that he rests assured that the ABCMR's final decision
will reflect sound equitable principles consistent in law, regulation,
policy and discretion.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 May 1991.  The application submitted in this case is dated18
May 2004.

2.  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 allows the ABCMR
to excuse failure to file within the 3-year statute of limitation if the
ABCMR determines that it would be in the interest of justice to do so.  In
this case, the ABCMR will conduct a review of the merits of the case to
determine if it would be in the interest of justice to excuse the
applicant’s failure to timely file.

3.  The applicant was born on 10 July 1965.  He enlisted in the DEP on 1
June 1989 for 8 years.  His DD Form 4/1 (Enlistment/Reenlistment Document
Armed Forces of the United States, paragraph 8 states in part, "…My
enlistment in the DEP is in a nonpay status.  I understand my period of
time in the DEP is NOT creditable for pay purposes upon entry into a pay
status.  However, I also understand that this time is counted toward
fulfillment of my military service obligation or commitment…"

4.  In paragraph 1a of the applicant's DA Form 3286-59/1 (Statement for
Enlistment United States Army Enlistment Option US Army Delayed Enlistment
Program), he acknowledged that his enlistment in the USAR obligated him to
a total of 8 years service in the U. S. Armed Forces, including service in
the Reserve components, unless sooner discharged by proper authority.
Fulfillment of that obligation began on the date he would enlist in the
DEP.

5.  The applicant enlisted in the Regular Army in pay grade E-2 on 17
August 1989 for 4 years.  He completed basic training and advanced
individual training and was awarded military occupational specialty 71L
(Administrative Specialist).

6.  On 29 October 1990, the applicant was enrolled in the Alcohol and Drug
Abuse Prevention and Control Program (ADAPCP) for episodic alcohol abuse.

7.  A DA Form 4856 (General Counseling Form) dated 6 November 1990 shows
the applicant was counseled for failure to repair on 5 November 1990.  It
also noted that it was the fourth time in four months that he had failed to
repair and that future actions could result in separation under the
provisions of Army Regulation 635-200, chapter 14 (misconduct).

8.  On or about 15 December 1990, the applicant accepted nonjudicial
punishment under Article 15, Uniform Code of Military Justice for failing
to go to his appointed place of duty on or about 18 December 1990.  His
punishment was a reduction to pay grade E-2, a forfeiture of $197.00 pay,
14 days extra duty, and 14 days restriction.  All punishments were
suspended to be automatically remitted if not vacated before 15 April 1991.

9.  The applicant's records contain two Dishonored Check Notifications.
One, dated 6 March 1991, lists two checks and the other, dated 11 March
1991, lists five different checks.

10.  A DA Form 4466 (ADAPCP Client Progress Report (CPR)) dated 1 March
1991 shows the applicant was enrolled in Track II of ADAPCP with a
counselor's assessment of his progress during rehabilitation as "fair" (out
of ratings of "excellent," "good," "fair," and "unsatisfactory").  There is
no evidence to show he completed the ADAPCP program prior to his
separation.

11.  A DA Form 4856 dated 18 April 1991 shows the applicant was counseled
for writing seven bad checks.

12.  On 25 April 1991, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for being AWOL from on or
about 6:00 a.m. 17 April 1991 to on or about 11:45 p.m. 18 April 1991.  His
punishment was a reduction to pay grade E-2, extra duty for 14 days, and
restriction for       14 days.
13.  On 29 April 1991, the applicant's commander initiated a local bar to
reenlistment on him.  The commander cited the applicant's two Article 15s,
two instances of non-payment of just debts (nonpayment of rent from January
through April 1991 for $1,586.00 and a telephone bill for $601.47), and the
fact the applicant was consistently late for duty, continued to stay in
debt, and could not conform to military rules and regulation.  The
applicant signed the DA Form 4126-R (Bar to Reenlistment Certificate) on 29
April 1991 and indicated he would not appeal the bar to reenlistment and
did not desire to submit a statement in his own behalf.  The bar was
approved on 30 April 1991.  On 2 May 1991, he again signed the DA Form 4126-
R indicating he would not appeal the bar to reenlistment.

14.  On 8 May 1991, the applicant requested discharge under the provisions
of Army Regulation 635-200, chapter 16-5 because he perceived he would be
unable to overcome the bar to reenlistment.  He understood that if his
request for separation before his normal expiration term of service (ETS)
was approved it would be for his own convenience.  He also understood that,
once separated, he would not be permitted to reenlist at a later date.

15.  On an unknown date, the applicant signed a statement of options
indicating he did not desire a separation medical examination.

16.  The appropriate authority approved the applicant's request.  Paragraph
3 of the approval endorsement contains the typewritten entry, "(applicant)
will be transferred into the Individual Ready Reserve (IRR), …"  A
handwritten and initialed (not the initials of the approval authority)
"not" was inserted between the words "will" and "be."

17.  The applicant's DA Form 669 (Army Continuing Education System (ACES)
Record shows that he was briefed on 14 May 1991 on the effects his chapter
  16 discharge would have on his Montgomery GI Bill benefits.

18.  On 21 May 1991, the applicant was honorably discharged under the
provisions of Army Regulation 635-200, paragraph 16-5.  His DD Form 214
shows he had completed 1 year, 9 months, and 5 days of creditable active
service.  No lost time is listed on his DD Form 214.

19.  On 17 May 2004, the ADRB denied the applicant's request to change the
reason for his discharge.

20.  Army Regulation 601-280 (Total Army Retention Program), chapter 6 at
the time, prescribed procedures to deny reenlistment to Soldiers whose
immediate separation under administrative procedures was not warranted but
whose reentry into, or service beyond ETS with, the Active Army was not in
the best interest of the military service.  The bar to reenlistment was not
a punitive action.  The fact that a Soldier may have served honorably for a
number of years was considered in the evaluation of his or her service;
however, it did not prohibit the initiation of bar to reenlistment
procedures if such action was otherwise appropriate.  Soldiers could be
barred from reenlistment for one or a combination of numerous listed
infractions or reasons (not intended to be all-inclusive) to include being
late to formations, details, or assigned duties; being AWOL for 1 to 24
hour periods; and continuous indebtedness, reluctance to repay, or late
payments.

21.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 16, paragraph 16-5b at the time
provided that Soldiers who perceived that they would be unable to overcome
a locally imposed bar to reenlistment could request immediate separation.
Paragraph 1-34 did not require Soldiers being separated under paragraph 16-
5b to undergo a medical examination.

22.  Army Regulation 635-200, chapter 14, paragraph 14-14a states that
Soldiers are subject to separation for misconduct for a pattern of
misconduct consisting solely of minor military disciplinary infractions.

23.  Army Regulation 635-200, paragraph 1-1 states that millions of
Americans from diverse backgrounds and with a wide variety of aptitudes and
attitudes upon entering military service have served successfully in the
Army.  It is the policy of the Army to provide soldiers with the training,
motivation, and professional leadership that inspires the dedicated soldier
to emulate his or her predecessors and peers in meeting required standards
of performance and discipline.  The Army makes a substantial investment in
training, time, and related expenses when persons enter into military
service.  Reasonable efforts should be made to identify soldiers who
exhibit a likelihood for early separation and to improve their chances for
retention through counseling, retraining, and rehabilitation prior to
initiation of separation proceedings.  Soldiers who do not conform to
required standards of discipline and performance and Soldiers who do not
demonstrate potential for further military service should be separated in
order to avoid the high costs in terms of pay, administrative efforts,
degradation of morale, and substandard mission performance.

24.  Army Regulation 635-200, paragraph 1-36 states that, to retain
potential mobilization assets, only those Soldiers with no potential to
meet mobilization requirements will be discharged.  Soldiers separated
because of alcohol or other drug abuse rehabilitation failure, misconduct,
or homosexuality will not be transferred to the IRR.

25.  Public Law 101-501, dated 5 November 1990, directed the Armed Forces
to establish preseparation counseling for members being separated.

26.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8) effectively shortens that filing period, has determined that
the 3-year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The date of application to the ABCMR is within 3 years of the decision
of the ADRB; therefore, the applicant has timely filed.

2.  The applicant enlisted in the DEP on 1 June 1989, giving him a
statutory service obligation until 31 May 1997.  His contention that his
time in the DEP was to be credited towards his service obligation is
correct.  However, as his contract also noted, his period of time in the
DEP was not creditable for pay purposes upon entry into a pay status.  He
also was not on active duty during his time in the DEP.  The DD Form 214 is
a record of active duty service; his time in the DEP would not be listed as
either active duty service or prior inactive duty service on his DD Form
214.

3.  The applicant provides no evidence, other than his own contentions,
that his "command became intoxicated with the power it had and forgot about
the enlisted Soldier."

4.  The applicant provides no evidence to show that he had a mental
disorder that required referral to a psychiatrist, or that he had a mental
disorder that rendered him incapable of knowing right from wrong and
adhering to the right, or that his misconduct was the result of any such
mental disorder.

5.  The transcript of the "Dateline" program the applicant provided dealt
with the issue of rape, a crime over which the two female victims
highlighted by the program had no control.  The applicant has provided no
evidence to show what his emotional and psychological disorders were that
his unit allegedly treated so shabbily.

6.  The evidence of record shows that the applicant had more than two
instances of misconduct.  Even if his contention that his indebtedness was
the result of     his roommate leaving is accepted, the evidence of record
shows that as of          5 November 1990 he had already had four instances
of failure to repair.  He was also warned at that time that future actions
could result in separation for misconduct.  By April 1991, he had written
seven bad checks.  He had one day of AWOL and he provides no evidence to
show that the AWOL was the result of a medical condition.

7.  In addition, it appears the applicant was still enrolled in ADAPCP at
the time he separated.  He was not an alcohol rehabilitation failure and he
had not been separated for misconduct.  However, the fact it appears he had
not completed ADAPCP and had at one time been considered for chapter 14
separation leads the Board to conclude the separation authority made a
decision that the applicant did not have the potential to meet mobilization
requirements.  The applicant provides no evidence to show that the
correction to the approval endorsement was made without the separation
authority's knowledge and therefore the Board presumes administrative
regularity.

8.  The regulation did not require the applicant to undergo a separation
physical examination.  He had the option of requesting one; however, he
declined that opportunity.

9.  The law requiring the Army to provide preseparation counseling to
separating members was passed six months prior to the applicant's
separation.  Nevertheless, the evidence of record shows he was counseled
and that the consequences to his GI Bill benefits of a chapter 16 discharge
were explained to him.

10.  The applicant contends that the regulation makes it incumbent upon the
leadership to make diligent efforts to identify Soldiers who exhibit a
likelihood for early separation and improve their chances for retention
through counseling, retraining, and rehabilitation prior to initiation of
separation proceedings.  The evidence of record shows the applicant was
counseled at least twice in writing.  More importantly, his command never
initiated separation proceedings.

11.  The applicant voluntarily requested early separation instead of trying
to overcome the bar to reenlistment.  His early separation disqualified him
from receiving certain VA benefits.  The VA operates under its own policies
and procedures and the Army has no jurisdiction over the VA.  There is
insufficient evidence that would justify changing the applicant's date of
separation or reason for his separation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wtm___  __jtm___  __wdp___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




            __Walter T. Morrison__
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040001426                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050201                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1991/05/21                              |
|DISCHARGE AUTHORITY     |AR 635-200, ch 16                       |
|DISCHARGE REASON        |A90.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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