IN THE CASE OF:	  

		BOARD DATE:	        7 August 2008

		DOCKET NUMBER:  AR20080005777 


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 discharge be upgraded to honorable or “say the real reason of my discharge on my Member 4 copy of my DD 214” (Report of Separation from Active Duty).

2.  The applicant states that he was discharged from the Army in 1978 and he was led to believe that this was his choice and not the choice of the Army.  He was put up on a court-martial while at Fort Rucker, AL.  He was found not guilty of the charges, and every witness who appeared on his behalf was sent to another post.  He will not say it was a witch hunt against him, but he will say that once Captain B___ had a disliking for him it became impossible for him to do what he needed to do to be a great Soldier.  He tried to get a transfer out of Fort Rucker, but he was denied.  They transferred him to another company where the turmoil continued.  He was put up for another court-martial, and again he was found not guilty.  

3.  The applicant states that the panel of officers that presided over his court-martial asked him what he thought and if he wanted to continue in the military or get out under a general discharge under honorable conditions.  He had nine months left to do, and he explained to the panel that he knew they would have him up on some other bogus charges before his separation date.  So, he opted out so he would not face the humiliation of getting a dishonorable discharge.

4.  The applicant states he took the U. S. Postal Service examination and passed, whereupon they asked to see his DD Form 214.  They inquired about the general discharge under honorable conditions part and asked him to furnish them with the Member 4, long version of his DD Form 214.  That is when he found out how they omitted his reason for being discharged.  

5.  The applicant states that they made it appear he was a person of bad character, bad debt, too many Article 15s, and a person not fit to be in the U. S. Army, not once saying anything about his accomplishments or letters of commendation or the fact that he was the one who asked for the general discharge.  He was not forced out or put out of the Army.  In fact, he only received one Article 15 that he can recall.  Never in 30 years did he know what they wrote, and that caused him not to the appointed to the U. S. Post Office.

6.  The applicant provides no additional evidence.

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 13 April 1976.  He completed basic training.

3.  On or about 21 September 1976, while at Fort Leonard Wood, MO, attending advanced individual training (AIT), the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 7 September to on or about 14 September 1976.

4.  The applicant completed AIT and was awarded military occupational specialty 51A (Construction and Utility Worker).  

5.  The applicant was assigned to Company B, 46th Engineer Battalion, Fort Rucker, AL, on 21 October 1976.


6.  Item 27 (Remarks) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows that he was arrested by civil authorities for possession of marijuana with a court date of 21 February 1977 and that he was fined $115.00.

7.  On 12 April 1977, the applicant accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty.

8.  Item 21 (Time Lost) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was AWOL from 13 July through 14 July 1977.

9.  A DA Form 3975 (Military Police Report) shows the applicant was arrested on 13 July 1977 for driving while his license was suspended, improper exhaust, and failure to appear in (civil) court.  The DA Form 3975 indicates that he appeared in court and was fined $252.00 for the three offenses and that as of 1 September 1977 he had only paid half of the fine.

10.  On 9 September 1977, the applicant was given a letter of reprimand for being absent from a company-called alert.

11.  On 12 September 1977, the applicant accepted NJP under Article 15, UCMJ, for unlawfully striking another Soldier on his face with his fist.  His punishment was a forfeiture of $87.00 pay for one month.

12.  On or about 16 September 1977, the applicant was reassigned to Company C, 46th Engineer Battalion, Fort Rucker, AL, as a rehabilitative transfer.

13.  On 30 January 1978, the applicant accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty.  

14.  Between 24 August 1977 and 1 February 1978, the applicant was counseled on six occasions for incidents including being late for formation, assault, mutilation of Government documents, indebtedness, civil offenses, and sleeping in class.

15.  On 21 February 1978, the applicant completed a separation physical examination and was found qualified for separation.  

16.  On 22 February 1978, the applicant completed a mental status evaluation.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

17.  On 28 February 1978, the applicant was advised that he was recommended for discharge under the provisions of chapter 13, Army Regulation 635-200, due to frequent incidents of a discreditable nature with civil and military authorities.

18.  On 28 February 1978, the applicant acknowledged that he was advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for “(misconduct) (unsuitability)” (the word “unsuitability” was Xd out) under the provisions of chapter 13, Army Regulation 635-200, and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  The applicant requested consideration of his case by a board of officers; requested personal appearance before a board of officers; waived minority membership on the board of officers; did not submit statements in his own behalf; and requested representation by counsel.

19.  The applicant also acknowledged that he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to hm.  He further understood that, if discharged for misconduct and issued an undesirable discharge under conditions other than honorable, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.

20.  On 28 February 1978, the applicant was formally recommended for separation under the provisions of Army Regulation 635-200, paragraph 13-5a(1) due to frequent incidents of a discreditable nature with civil and military authorities.  Paragraph 6a of this recommendation stated, “(Misconduct cases only) I do not consider it feasible or appropriate to recommend elimination for unsuitability or to accomplish disposition in this case because:…this pattern of misconduct.  Only (the applicant’s) separation will improve the situation.”  

21.  Paragraph 6b of the formal recommendation stated, “(Unsuitability cases only) I do not consider it feasible or appropriate to effect other disposition in the case because:” and no further entries were made.

22.  A board of officers convened on 13 April 1978.  The applicant and counsel for the applicant appeared before the board.  Counsel objected to the “Chapter 13 elimination packet,” as a result of which several modifications were made to the packet and pieces of information were taken out of the packet.  Four Soldiers testified for the applicant – two Privates First Class, one Sergeant, and one Staff Sergeant.  


23.  The applicant testified in his own behalf.  He testified that he was being harassed by Private First Class D___ (the Soldier he assaulted and for which the applicant received one of his Article 15s).  Private First Class D___ used racial slanders to try to make the applicant hit him.  He testified that he tried to transfer out of Fort Rucker several times, but he was turned down.  He testified that he was accused of abusing his children, but a social worker came out and found that he was not abusing his children.  He testified that he never paid a fine for marijuana possession; that charge was thrown out of court.  He testified that he did not do any of the other things that the Government’s witnesses said he did.  

24.  The board of officers recommended that the applicant be discharged for repeated acts of a discreditable nature with civil and military authorities with a General Discharge Certificate.

25.  On 15 May 1978, the recommendation of the board was approved by the appointing authority.

26.  On 17 May 1978, the applicant was discharged, with a general discharge under honorable conditions, after completing 2 years and 24 days of creditable active service with 9 days of lost time.  One copy of his DD Form 214 shows the authority and reason for his separation as Army Regulation 635-200, paragraph 14-33b(1), misconduct – frequent incidents of a discreditable nature with civil or military authorities.

27.  Prior to his separation, the applicant had requested to receive a copy of his DD Form 214 and a separate document explaining the narrative reason for his separation from the Army, a narrative description of the authority for his separation, and the reenlistment code.

28.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, then in effect, contained the policy and outlined the procedures for eliminating enlisted personnel found to be unsuitable for further military service due to inaptitude, personality disorder, apathy, or homosexuality (without overt homosexual acts).

29.  Army Regulation 635-200, chapter 14, establishes policy and prescribes procedures for separating members for misconduct and it is established that further efforts at rehabilitation were unlikely to succeed or they are not amenable to rehabilitation measures.  At the time, paragraph 14-33b(1) provided for the separation of enlisted Soldiers for patterns of misconduct – frequent incidents of a discreditable nature with civil or military authorities.  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.  

30.  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.  

31.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  The version in effect at the time stated the authority and reason for separation, separation program designator code, and reenlistment code would not be entered on copies of the DD Form 1214 furnished to the individual and to agencies outside the Department of Defense.  Individuals must have also specifically requested the optional form indicating the narrative reason for separation, a narrative description of the regulatory/statutory authority for separation, and a narrative explanation of the reenlistment code.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that he was discharged from the Army in 1978 and he was led to believe that that was his choice and not the choice of the Army.  However, it is difficult to understand how he could have believed that.  His discharge packet clearly indicated that he was being recommended for discharge, not that he was requesting discharge.

2.  The applicant contended that he did not find out about the reason for his discharge being omitted from his DD Form 214 until he requested a copy of that DD Form 214 (with the reason listed) when trying to obtain employment with the U. S. Postal Service.  However, he had requested a copy of his DD Form 214 and a separate document explaining the narrative reason for his separation from the Army, a narrative description of the authority for his separation, and the reenlistment code prior to his being discharge.  If he had not received the second document, he should have/could have requested it long before his current employment efforts.

3.  The applicant contended that he only received one Article 15 that he could recall.  However, the evidence of record shows he received four Article 15s, a letter of reprimand, and numerous counseling statements while in Army.  

4.  There was an error in the processing of the applicant’s recommendation for discharge; however, it was a harmless error.

5.  All of the documents pertaining to the applicant’s recommendation for discharge referenced a regulatory authority of Army Regulation 635-200, chapter 13, which governed unsuitability; however, all of those same documents also referenced the narrative reason for his separation as misconduct – frequent incidents of a discreditable nature with civil or military authorities, which was governed by chapter 14.  Therefore, the applicant and his counsel were properly notified of the real reason for his contemplated separation action.  The correct regulatory authority (Army Regulation 635-200, paragraph 14-33(b)(1)) for his separation was noted on his DD Form 214.

6.  The applicant’s contentions concerning his tour of duty at Fort Rucker, both with his current application and with his testimony during his board hearing, have been carefully considered.

7.  It appears the applicant’s commander may have taken into consideration the applicant’s personal conflict with Private First Class D___ when he gave the applicant the Article 15 for assault.  A punishment of only a forfeiture of pay is very lenient for an assault charge.  It also appears that the board of officers and his commander may have taken the mitigating testimony of his witnesses into account when determining the applicant should be discharged with a general under honorable conditions discharge.  A discharge under other than honorable conditions is normally appropriate.

8.  However, it is also noted that the applicant’s misconduct did not start at Fort Rucker.  He received an Article 15 while still in AIT for a 7-day period of AWOL, which tends to invalidate the applicant’s argument that none of his troubles at Fort Rucker were of his own making.  

9.  Based on the above discussion and conclusions, there is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ___xx___  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.




      _______ xxxx_______   ___
               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)                                         AR20080005777



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ABCMR Record of Proceedings (cont)                                         AR20080005777



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