IN THE CASE OF:	  

		BOARD DATE:	       9 September 2008

		DOCKET NUMBER:  AR20080005684 


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 his general, under honorable conditions discharge be upgraded to honorable.   He further requests correction of his records to show that he was born in Mannheim, Germany.

2.  The applicant states, in effect, that he is incapable of working and needs disability benefits.  However, he first needs an upgrade of his discharge.  He also has to verify his place of birth.  His records only show that he was born in Europe.  He asks for a copy of his birth certificate. 

3.  The applicant provides a copy of his Report of Separation from Active Duty (DD Form 214).

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.  On 1 November 1976, the applicant enlisted in the Regular Army for four years.   He completed his initial training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  On 14 June 1977, the applicant was assigned for duty as a gunner with the 1st Battalion, 23rd Infantry Regiment, in the Republic of Korea.

4.  On 9 September 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for stealing two cartons of cigarettes.  The punishment included forfeiture of $99.00 pay per month for 1 month, and 14 days restriction and extra duty.

5.  On 29 September 1977, the applicant accepted NJP for being absent without leave for three days.  The punishment included a forfeiture of $99.00 pay per month for 1 month, and 7 days restriction and extra duty.

6.  On 14 October 1977, the applicant accepted NJP for the wrongful possession and use of a narcotic drug.   The punishment included reduction to pay grade
E-1, forfeiture of $100.00 pay per month for 2 months, and 30 days restriction and extra duty.

7.  On 8 February 1983, the applicant’s commander initiated a recommendation to separate him from the service under the provisions of Army Regulation
635-200, Chapter 13, for unsuitability due to apathy.  

8.  At a mental status evaluation [date unavailable in records] the applicant's behavior was found to be normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal, and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right and capable of participating in the separation processing.

9.  On 21 October 1977, the applicant consulted with counsel, waived his rights, and elected not to make a statement in his own behalf.

10.  On 1 November 1977, the appropriate authority approved the separation recommendation and directed that he be issued a General Discharge Certificate. 

11.  Accordingly, he was discharged under honorable conditions on 
16 November 1977.  He had completed 1 year and 9 days of creditable active service.

12.  On 28 March 1980, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge. 

13.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy and homosexuality.  The regulation requires that separation action will taken, when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

14.  A review of the applicant’s records did not produce any evidence showing that the applicant was born in Mannheim, Germany.  His records did show that he had attended high school in Germany and that his father was assigned to a United States Army unit in Germany. 

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 has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.

4.  There is no evidence of record showing that the applicant was born in Mannheim, Germany.  However, if he was born in a United States Army hospital in Germany, it is possible that his father registered him as a United States citizen born abroad.  This document may be obtainable from the Department of State.  Also, there may be a copy of his medical records, from when he was a dependent of his parents, on file in the National Archives.

5.  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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.
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)                                         AR20080005684



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ABCMR Record of Proceedings (cont)                                         AR20080005684



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