RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  22 March 2007
	DOCKET NUMBER:  AR20060011465 


	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. Gerard W. Schwartz

Acting Director

Mr. W. W. Osborn, Jr.

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. John T. Meixell

Member

Mr. Roland S. Venable

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.

2.  The applicant states, in effect, that he was undergoing a personal crisis in that his wife was ill.  He sought help both from his unit and from the medical department but received no support.  He had been a good troop and had volunteered for the operation in Panama (Operation Just Cause).  He did not want to be discharged.  He just needed time to work through his problems.  His records show exactly when his wife became ill.  Since the discharge he has served in Iraq and has several honorable discharges.

3.  A concurrent application to the Army Discharge Review Board (ADRB) was referred here because the ADRB's 15-year statute of limitations had expired.  It contains a more concise narrative as follows:

I was a good soldier in Boot Camp, the first week in Boot Camp I broke my hand, three weeks later I got semolina (sic) food poisoning and almost died.  I still carried on through training and still graduated with my class.  I went through Airborne School with a half-healed broken hand and passed qualification.  I was offered by the chaplain to sit out the Panama Invasion, Operation Just Cause, due to being the only child.  I still volunteered to go and made a combat jump on Tocumen Airport.  I was 1st man on our entry teams and did several missions deep into Panama City.  When I got back I was married to my now wife of 15 years and she became pregnant.  Her body rejected the pregnancy and her health and the baby's started to decline.  I was flying home every weekend and was being mentally worn out as well as physically.  I talked with my CO and he was wanting to work with me, then my CO was replaced and when the new CO took post everything went fast but in the wrong direction.  I was going to get a hardship with full honorable but he downgraded it to general under honorable.  I had to take a self assessment and ended up in a mental ward.  They told me I had PTS and was semi-depressed.  When I explained what was going on in my life they said this was just a procedure in the out processing process.  On 14 June 1990 I was discharged with a General Under Honorable conditions and lost everything, when this did not need to happen.      

4.  The applicant provides copies of DD Forms 214 (Certificates of Release or Discharge from Active Duty), dated 4 August 1990 and 17 August 2004; a DD Form 215 (Correction to DD Form 214); an appendix to an operation order designating him a "Force Protection Trainer"; a 6 June 2004 certificate of recognition authorizing him to wear the Shoulder Sleeve Insignia-Former Wartime Service (Right Shoulder Insignia) of the 1st Infantry Division; and a 
2 July 2003 Certificate of Training from the Illinois Army National Guard.   

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 4 June 1990.  The application submitted in this case is dated 17 July 2006.

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.  The applicant enlisted on 1 August 1989, completed basic training, advanced individual training as an infantryman, and basic airborne training.  He was awarded the Parachutist Badge.

4.  The applicant participated in Operation Just Cause in Panama.  For this deployment, he was awarded a bronze service star for wear on the Parachutist Badge for making a combat parachute jump and the Combat Infantryman Badge.

5.  On 1 March 1990, the company commander, Captain Paul D____, recommended that the battalion commander waive the time-in-grade requirement and advance the applicant to private first class (E3).

6.  The applicant was admitted to the mental health unit from the emergency room at Womack Army Hospital, Fort Bragg, North Carolina on 19 March 1990.  He was discharged from the hospital on 21 March 1990 with diagnoses of, "adjustment disorder with mixed emotional features, alcohol dependence, features of post-traumatic stress disorder, and borderline personality traits."  The applicant was returned to duty. 

7.  He received nonjudicial punishment (NJP) on 23 March 1990 for a 1-day absence without leave (AWOL) on 5 March 1990.   

8.  On 26 March 1990, the applicant was recommended for a bar to reenlistment based on the NJP and the psychiatric diagnoses.  The commander cited the doctor's opinion that the applicant would not become "a quality soldier" and noted that his performance had been substandard.  The applicant was advised of the recommendation and indicated that he did not desire to submit a statement in his own behalf.  The battalion commander approved the bar to reenlistment on the same day.

9.  On 4 April 1990, the company commander counseled the applicant concerning the 26 March 1990 bar to reenlistment and advised him that he had
7 days in which to appeal.  The applicant indicated that he did not desire to appeal.

10.  On 16 May 1990, the commanding officer, Captain B Don F____, recommended that the applicant be separated with a general discharge due to unsatisfactory performance under the provisions of Chapter 13, Army Regulation 635-200.   The recommendation noted that the applicant had been counseled on 12 separate occasions.  The attached counseling statements indicated repeated misconduct including missing movement and destroying govern, and also instances of sloppy appearance and unsatisfactory work performance.
  
11.  The applicant consulted with counsel, on 16 May 1990, and acknowledged that he had been recommended for separation with a general discharge.  He declined to offer statements on his own behalf.  He indicated that he understood that he could expect to encounter substantial prejudice in civilian life if he received a general discharge.

12.  The separation authority approved the recommendation and directed a general discharge.  On 4 June 1990 the applicant was separated under the provisions of Army Regulation 635-200, chapter 13.  He had 10 months and 4 days of creditable service.  He was issued a reentry code of RE-3.
     
13.  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 this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.


14.  In a 1990 letter requesting a change in his reentry code the applicant wrote, "…I was married and that's when my military downfall began.  My wife threatened to divorce me if I didn't get out of the Army.  She used my unborn child against me.…My conclusion in the Army should have helped me instead of going against me because I was at one time top of the line combat infantry Soldier.  I divorced my wife November 22, 1990 because when I was discharged and at home with a steady job, she got a special abortion so it defeated the purpose of me getting discharged from the Army.…"

15.  On 14 October 1996, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

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

2.  The applicant's subsequent service is noted; however, this does not mitigate the behavior that led to the general discharge.   

3.  By his own admission he had performed well and the recommended waiver of the time-in-grade requirement for advancement to private first class seems to confirm this.  However, his performance deteriorated because he had determined to obtain his release from the Army for marital reasons.  In short the applicant received what he sought, his discharge.  There is no evidence of record that the applicant ever requested or submitted the supporting documentation for a hardship discharge.
4.   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 14 October 1996.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 13 October 1999.  However, the applicant did not file within the 3-year statute of limitations and has not provided a 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

__JTM___  __LDS__  __RSV __  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.




__Linda D. Simmons___
          CHAIRPERSON
INDEX

CASE ID
AR20060011465
SUFFIX

RECON

DATE BOARDED
20070322
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19900604
DISCHARGE AUTHORITY
AR635-200, chapter 13 . . . . .  
DISCHARGE REASON
A49.00
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
A93.09
2.

3.

4.

5.

6.