RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            22 JUNE 2006
      DOCKET NUMBER:   AR20050016624


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Gunlicks                |     |Chairperson          |
|     |Mr. Larry olson                   |     |Member               |
|     |Ms. Peguine Taylor                |     |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 that his general discharge be upgraded to
honorable and that his military occupational specialty (MOS) of 97B –
Counterintelligence Agent be added to his report of separation (DD Form
214).

2.  The applicant states, in effect, that the reason that he was unjustly
discharged is because his commander was having an affair with his wife
prior to his arrival at his duty station and it was the commander’s
intention to get him out of the picture.  He further states that he was
improperly discharged under chapter 13 and that procedures were followed in
accordance with the applicable regulation.  He also states that he was
never counseled for any of the actions that served as the basis for his
discharge, that he was never given a chance to rehabilitate himself or to
transfer to another unit.  He also states that up until he arrived at his
new unit, he was a model soldier with many accomplishments to his credit
and that his entire life has been altered because of the unjust actions
taken by a corrupt commander.  He continues by stating that if one reads
between the lines, it is easy to see that something happened to cause him
to go from a model soldier to one of unsatisfactory performance.

3.  The applicant provides two separate letters explaining his application,
two letters of commendation, three awards certificates for two Army
Achievement Medals and the Good Conduct Medal, his reenlistment
certificate, his completion of the Primary Leadership Development Course
(PLDC), his appointment to the Business Advisory Council, a National
Leadership Award, a Certificate of Commendation, a copy of his DD Form 214,
and four third party character references.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 August 1991.  The application submitted in this case is
dated 7 November 2005.

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 Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations 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.  He enlisted in the United States Army Reserve (USAR) under the Delayed
Entry Program on 25 February 1987 for a period of 8 years.  He enlisted in
the Regular Army on 30 April 1987 for a period of 3 years and training as a
Pershing Missile Crewman.  He completed his one-station-unit training
(OSUT) at Fort Sill, Oklahoma and was transferred to Germany on 12 October
1987.  He was advanced to the pay grade of E-4 on 30 July 1989.

4.  On 15 December 1989, his application for training as a
Counterintelligence Special Agent under the Bonus Extension and Retraining
(BEAR) Program was approved.  He extended his enlistment on 18 January 1989
for 30 months to meet the service remaining requirements for participation
in the Bear Program.

5.  He departed Germany on 4 May 1990 and was transferred to Fort Huachuca,
Arizona to attend training in MOS 97B.  He completed his training in
October 1990 and received orders transferring him to Germany.

6.  The applicant married another Soldier and requested entry into the
Married Army Couples Program effective 28 November 1990.  The applicant and
his spouse were both assigned to the same military intelligence company in
Garlstedt, Germany.

7.  On 28 January 1991, the applicant was counseled by his supervisor which
informed the applicant that based on his performance to date he would not
be recommended for promotion.  His supervisor indicated that the applicant
showed a lack of concern and sensitivity for others and his spouse, that he
showed relative immaturity when faced with difficult situations, and that
his marital problems were affecting his performance at the work place and
reflected adversely on his maturity, honesty and character.  The applicant
non-concurred with the counseling.

8.  The applicant was again counseled on 18 February 1991 for his repeated
failure to be at his appointed place of duty when directed by his
supervisor.  His supervisor informed him that further occurrences would not
be tolerated and that until he recognized the need for change and personal
development, he would not be allowed to move into positions of increased
responsibility and thus his utilization as a functional counter-
intelligence (CI) agent was severely limited.

9.  On 20 February 1991, the applicant’s supervisor prepared a chronology
of events on a counseling form in which he indicated that in December 1990,
he had informed the applicant that none of the CI agents in the detachment
would be issued military identification (ID) cards with the rank of
“Special Agent” and that their normal ID Cards with an “E” rank would be
used in their capacities as CI agents. After being informed of this policy,
the applicant went to the ID Card facility after his supervisor departed
and was able to convince personnel at that facility that he was entitled to
be issued an ID Card with the rank of “Special Agent” on it in lieu of his
“E” rank.  When the supervisor confronted the applicant he told his
supervisor that it had been issued before the guidance was issued.  He
later changed his story and told his supervisor that he had it issued after
the guidance was disseminated and that he had interpreted the guidance to
be an individual determination.  The applicant went on to talk about his
integrity, his honesty, and how well he had done so far in the military,
such as being the honor graduate of the PLDC.  However, a check of his
records showed that he was not the honor graduate of the PLDC, which showed
that the applicant continued to exaggerate and blatantly lie to both his co-
workers and supervisors alike.

10.  On 27 February 1991, the applicant’s commander issued him written
orders informing him that his spouse’s quarters were off-limits to him,
that he was not to be in the same room alone with his spouse under any
circumstances, that the two of them were not to meet unless accompanied by
a ranking supervisor of the unit, and that he was not to go to his office
unless he had ensured that his spouse was either not present or that a
supervisor was present.  He was also informed that he would not discuss any
incidents or relations he had with his spouse to anyone other than to the
chain of command, chaplains, or legal authorities.  The applicant
acknowledged that he had received the order and that he understood the
directions and purposes stated.

11.  On 12 March 1991, the applicant’s commander and supervisor (E-6) read
the applicant his rights and conducted a counseling of the applicant.  The
subject of the counseling was the violation of written and verbal orders
given to the applicant on 27 February 1991.  The memorandum for record that
was prepared indicates that the applicant admitted that he had violated the
written order by going to his spouse’s residence and that he had left the
billets while on quarters from sick call.  He was again read his rights and
was asked if he had violated his profile and medical quarters restriction
other than the one time he went off post for a gyros.  The applicant
indicated that he had only left his quarters that one time.  However, when
the commander asked the question, unbeknownst to the applicant, he had
numerous statements from noncommissioned officers who witnessed the
applicant taking multiple trips off post and playing racquet ball during
the period he was on quarters.

12.  On 5 April 1991, nonjudicial punishment was imposed against the
applicant for failure to go to his place of duty and for violating a lawful
written order from a superior commissioned officer.  His punishment
consisted of a reduction to the pay grade of E-3 (suspended for 6 months,
unless sooner vacated), a forfeiture of pay, extra duty and restriction.
The applicant did not appeal the punishment.

13.  On 11 April 1991, the applicant was counseled by his supervisor and
was informed that if he continued in a substandard manner, he would be
recommended for separation from the service.  He was also reminded that he
was under restriction and that it was his responsibility to keep his
supervisor informed of his whereabouts at all times.  He was also informed
that his access to classified materials had been suspended and that the
commander was considering him for reclassification.  He was encouraged to
put his past behind him and to recover from his past problems.  The
applicant non-concurred with the counseling and submitted a four-page
handwritten statement in his own behalf whereas he asserted that he was not
being treated fairly, that he had never been in any trouble before, that he
had always exceeded his peers and that he was a quality Soldier who had a
lot to contribute to the Army.

14.  On 23 April 1991, the applicant underwent a mental status evaluation
and the examining psychologist opined that the applicant had troublesome
personality traits but none sufficient to classify him as having a
personality disorder.  He further indicated that the applicant should not
be placed in highly sensitive positions requiring high levels of trust or
responsibility.  He also indicated that he would not likely benefit from
psychotherapy as he lacks self awareness and tends to project blame onto
others.  His behavior should be monitored closely as he appears to have a
high propensity for some sort of acting out behavior.  He was deemed
mentally responsible, able to distinguish right from wrong and to adhere to
the right.  The examining official cleared the applicant for any
administrative action deemed necessary by the command.

15.  While not explained in the available records, his records show that he
was reduced to the pay grade of E-3 on 24 June 1991.

16.  On 2 July 1991, the applicant’s commander informed him that he was
initiating action to separate him from the service under the provisions of
Army Regulation 635-200, chapter 13 for unsatisfactory performance.  He
cited the applicant’s failure to respond to numerous counseling sessions,
his involvement in a domestic disturbance that appeared on a military
police report, his NJP and his mental status evaluation as the basis for
his recommendation.

17.  After consulting with counsel the applicant indicated that he
understood that if he had 6 years of service he was entitled to have his
case heard by an administrative separation board.  He elected to appear be
for a board and not to submit a statement in his own behalf.  His defense
counsel opined that there was insufficient basis for a chapter 13
discharge.

18.  On 15 July 1991, the applicant submitted a rebuttal to the separation
action whereas he requested that the convening authority either disapprove
or suspend the separation action.  He went on to explain his
accomplishments over the past 4 years and apologized for the incident that
led to his being recommended for separation.  He accepted responsibility
for his actions and went on to explain that his failing marriage was the
cause of his problems.  He further requested that if the commander elected
not to retain him, that he at least give him an honorable discharge.

19.  The appropriate authority approved the recommendation for discharge on
2 August 1991 and directed that he be furnished a General Discharge
Certificate.

20.  Accordingly, he was discharged under honorable conditions on 28 August
1991, under the provisions of Army Regulation 635-200, chapter 13, for
unsatisfactory performance.  He had served 4 years, 3 months and 29 days of
total active service and had held the MOS of 97B for approximately 10
months.

21.  He applied to the Army Discharge Review Board for an upgrade of his
discharge on 27 June 1995 and was granted a personal appearance before that
board.  He asserted at that time that he was assigned to an office where he
supervised his wife and problems began to escalate between them.  He
repeatedly requested that his commander transfer him to another unit. He
stated that he attended marriage counseling to improve his marriage but
nothing was working.  He went on to state that he was under much pressure
and was not treated fairly.

22.  The ADRB after reviewing all of the facts and circumstances of the
case opined that while it was not desirable or usual to have one’s wife as
a subordinate, that situation was not the sole reason that led to his
discharge.  He disobeyed orders, lied to his chain of command and
repeatedly broke restriction. He was having marital problems not related to
his work situation and was cited in military police reports.  While his
record does not support his claim that he repeatedly requested transfer,
even if it were true, it did not mitigate his performance and conduct.  The
ADRB determined that his discharge was both proper and equitable under the
circumstances and denied his request for an upgrade on 8 November 1996.

23.  A review of the available records fails to show any indication that
the applicant ever made any allegations of his commander having an affair
with his wife.  Additionally, there is no evidence that he filed any
complaints of such a nature with the inspector general or law enforcement
officials.

24.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13 contains the policy and
outlines the procedures for separating individuals for unsatisfactory
performance, and provides, in pertinent part, that commanders will separate
a member under his command when, in the commander’s judgment, the member
will not develop sufficiently to participate satisfactorily in further
training and/or become a satisfactory soldier.

25.  Army Regulation 635-200, sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
procedures for separating personnel for misconduct.  Specific categories
included minor infractions, a pattern of misconduct, involvement in
frequent incidents of a discreditable nature with civil and military
authorities, and commission of a serious offense.  A discharge under other
than honorable conditions is normally considered appropriate.

26.  Army Regulation 635-5 serves as the authority for the preparation of
the DD Form 214.  It provides, in pertinent part, that an individual must
possess an MOS for a minimum of 1 year before it may be entered on the DD
Form 214 at the time of separation.

27.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (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 applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all of the facts of the case.

3.  The applicant’s contention that his discharge was unjust and that he
was denied his due process rights have been noted and found to be without
merit.  The applicant did not have 6 years of service and therefore was not
entitled to a hearing by an administrative separation board.  He initially
declined the opportunity to submit matters in his own behalf but was
subsequently allowed to submit a rebuttal to the proceedings.

4.  The applicant’s contention that his commander was having an affair with
his wife and wanted him out of the picture has been noted.  However, it is
not supported by either evidence submitted with his application or the
evidence of record.  Furthermore, it is not reasonable to presume that the
commander would deny him a transfer to another unit if such was the case.

5.  The applicant’s contention that his discharge was unjust and that he
was a good soldier has been noted; however, the applicant could have been
discharged under chapter 14 for misconduct based on the evidence in his
case; however, it is apparent that the commander deemed his performance as
unsatisfactory and elected to discharge under the provision that more aptly
applied in his case.

6.  The applicant’s contention that his MOS of 97B should be entered on his
DD Form 214 was noted and found to be without merit.  The applicant did not
hold the MOS for the requisite 12 months (1 year) necessary to qualify for
entry on the DD Form 214.  Additionally, the evidence of record indicates
that action was being taken to disqualify him for that MOS and that at the
time his access to sensitive materials was suspended.  A prerequisite for
his MOS was to have access to such materials and he did not have it at the
time of his discharge.  Accordingly there is no basis to add the MOS to his
DD Form 214.

7.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 8 November 1996.
As a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 7 November 1999.  The
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided compelling explanation or evidence to show that it would
be in the interest of justice to excuse failure to timely file in this
case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JG __  ____LO  _  ____PT _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____James Gunlicks_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016624                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |19910828                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |1991/08/28                              |
|DISCHARGE AUTHORITY     |AR635-200/ch13 . . . . .                |
|DISCHARGE REASON        |Unsat perf                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |572/a49.00                              |
|1.144.4900              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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