IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080007272 


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, in effect, correction of his records by removing all documents and letters that contain lies and were used to support his separation, and resulted in his discharge from the Army prior to completing the entire term of his enlistment.

2.  The applicant states, in effect, while he was serving in the Army and stationed in Germany, he attempted to see an Army lawyer to determine why his commander would not allow him to attend helicopter training during the evening hours.  He also wanted to discuss with an Army lawyer the fact that he had a physical profile for his feet, but his commander directed that he wear low quarter shoes with his fatigues in an effort to punish and intimidate him, and which also made his feet worse off than they were.  The applicant adds that he never got to speak with an Army lawyer, only a paralegal.

     a.  The applicant states that when his commander found out that he attempted to see an Army lawyer, his commander plotted against him and asked if he wanted to be discharged from the Army.  The applicant also states that he was assigned overseas at the time, could not afford a civilian attorney, and had nowhere to turn.

     b.  The applicant states that he was up for promotion to private first class (PFC), but was denied promotion by a noncommissioned officer (NCO).  He also states that he was offered 2 choices, either to take or not take a discharge.

     c.  The applicant states that when U.S. Army troops were alerted due to the Berlin Wall being torn down, his commander attempted to get him to sign his discharge papers the very next day.  He adds that his commander did not want him to see an Army lawyer or get promoted to PFC and instructed an NCO to get the applicant to sign his discharge papers, even if he had to lie to the applicant. The applicant states that he then came to believe that it might be best for him to be reassigned to the United States and he then went to see an Army lawyer.

     d.  The applicant states that he received “merits” that are not shown in his records or on his discharge document.  He also states that he submitted a statement to be attached to his separation packet that was titled “My Real Reason for Leaveing (sic)” that explained he intended to complete his military service and summarized his accomplishments in basic combat training and advanced individual training.

     e.  The applicant states that his commander got mad at him because of the appearance of his shoes and threatened to punish him with non-judicial punishment.  He adds that he felt intimidated and neglected by military doctors and his commander also intimidated and humiliated him, even though he qualified for a secret clearance and earned several “merits.” 

     f.  The applicant states that his promotion to PFC was denied and he was tricked into signing his discharge papers without seeing the letters and documents that were included in his separation action. 

     g.  The applicant states that he has filed for disability compensation with the Social Security Administration based upon “aggravation of my feet.”

     h.  The applicant concludes by stating “I basically got screwed around - when even I could of (sic) been all that I wanted to be” and states he feels “I was put under false pretences (sic), and as well with false accusations, and who would want to stay in an Army after this.”

3.  The applicant provides a 12-page self-authored letter, dated July 2006; Standard Form 180 (Request Pertaining to Military Records), dated 6 January 2006; Headquarters, I Troop, 3rd Squadron, 11th Armored Cavalry Regiment (Germany), memorandum, dated 17 July 1979, subject:  Recommendation for Discharge UP [Under the Provisions of] Chapter 5, Army Regulation 635-200; and DD Form 214 (Report of Separation from Active Duty), with an effective date of 23 August 1979.


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’s military service records show that he enlisted in the U.S. Army Reserve on 28 September 1978 and entered active duty in the Regular Army for a period of 3 years on 11 October 1978.  

3.  The applicant's military service records contain a DA Form 2-1 (Personnel Qualification Record).  Item 35 (Record of Assignments) shows that the applicant attended One Station Unit Training (OSUT) at the U.S. Army Field Artillery Training Center, Fort Sill, Oklahoma.  This item also shows that upon completion of basic combat training and advanced individual training (AIT), he was awarded military occupational specialty (MOS) 13E1O (Cannon Fire Direct Specialist). Item 5 (Oversea Service) shows that the applicant was assigned to U.S. Army, Europe (USAREUR) in Germany from 21 March 1979 through 22 August 1979. Item 9 (Awards, Decorations and Campaigns) shows the applicant was awarded the Marksman Marksmanship Qualification Badge with (M16) Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  Item 18 (Appointments and Reductions) shows the applicant was advanced to the rank of private/pay grade E-2 on 11 April 1979 and this was the highest rank he attained during his military service.

4.  The applicant's military service records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 23 March 1979, and Army Europe (AE) Form 1385-R (Statement), dated
23 March 1979.  The DA Form 2627 shows that non-judicial punishment was imposed by the commander against the applicant for, on or about 1355 hours,
22 March 1979, violating a lawful general regulation, to wit:  paragraph 4-2 of Army Regulation 600-50, as modified by change 3, dated 27 August 1975, by wrongfully and unlawfully possessing 20 grams more or less of a controlled substance, to wit:  marijuana; in violation of Article 134, UCMJ.  The punishment 
imposed was forfeiture of $95.00 a month for 1 month.  The AE Form 1385-R shows that the applicant waived the assistance of counsel and also waived his right to trial in a criminal proceeding.  This document also shows that the applicant and commander placed their signatures on the statement and that the applicant’s first sergeant also signed the document in witness.  The DA Form 2627 further shows that the applicant did not appeal the punishment imposed by the commander in the Article 15 proceedings.

5.  The applicant’s military service records contain a copy of Headquarters, Howitzer Battery, 3rd Squadron, 11th Armored Cavalry Regiment (Germany), letter, subject:  Recommendation for Expeditious Discharge, (undated) that shows the applicant was notified by his commander that separation action under the provisions of Army Regulation 635-200, paragraph 5-31 (Expeditious Discharge Program), was being initiated against him and that an honorable discharge was being recommended.  The reasons for the separation action cited by the commander were the applicant’s failure to adapt to military life; that the applicant felt he could do what he wanted to do when he wanted to do it; that the applicant had been counseled on numerous occasions by the commander and other members of the applicant’s chain-of-command, to no avail; the applicant’s lack of promotion potential; and that all rehabilitative efforts were met with no success. The applicant was also informed that he had the right to decline the discharge and to submit statements in his own behalf, or waive this right by 16 July 1979.

6.  On 11 July 1979, the applicant acknowledged with his signature that he had received the separation notification and indicated he was voluntarily consenting to discharge from the Army and waived his right to submit statements in his own behalf.  The applicant also acknowledged that he understood that if he received a general discharge, he could expect to encounter substantial prejudice in civilian life, and acknowledged that he had been provided the opportunity to consult with a Judge Advocate General Corps officer.  

7.  The applicant’s military service records contain a copy of Headquarters,
I Troop, 3rd Squadron, 11th Armored Cavalry Regiment (Germany), letter, dated 17 July 1979, subject:  Recommendation for Discharge UP Chapter 5, Army Regulation 635-200.  This document shows that the applicant’s commander provided additional pertinent information pertaining to the applicant in support of his recommendation for discharge that indicated the applicant had received non-judicial punishment under Article 15, UCMJ, and had been counseled 20 times. The commander then forwarded his recommendation for expeditious discharge of the applicant to the approving authority.


8.  On 23 July 1979, the Commander, 3rd Squadron, 11th Armored Cavalry Regiment (Germany) and designated separation authority, approved the separation action and directed that the applicant receive an Honorable Discharge Certificate.

9.  The applicant's military service records contain a DA Form 137 (Installation Clearance Record) that documents his clearance from organizations and activities at Downs Barracks, Fulda, Germany.  In pertinent part, Item 19 (Medical Treatment Facility) shows that the applicant obtained the clearance of the Medical Treatment Facility official prior to his departure from Germany and discharge from the U.S. Army.

10.  The DD Form 214, issued to the applicant on the date of his discharge, confirms he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-31 (SPD JGH).  Item 16a (Primary Specialty Number and Title) shows the applicant was awarded MOS 13E1O (Cannon Fire Direct Specialist) on 20 February 1979.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar.  This document also shows that at the time of his discharge (on 23 August 1979) the applicant had completed 5 months and 2 days foreign service and 
10 months and 13 days net active service this period.

11.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

12.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.

13.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the Official Military Personnel File (OMPF).  Only those documents listed in Table 2-1 and Table 2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  This Army regulation also instructs, in pertinent part, that once placed in the OMPF, the document becomes a permanent part of that file and will not be removed or moved to another part of the OMPF, unless directed by appropriate authority.  Documents that are authorized for file in the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.
14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this Army regulation provides for disposition of the Soldier according to applicable laws and regulations.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 5, paragraph 5-31, provided the policy and outlined the procedures for separating individuals under the Expeditious Discharge Program (EDP).  The Expeditious Discharge Program provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army. This document shows, in pertinent part, an enlisted Soldier may be separated under the provisions of the EDP when they fail to respond to counseling for one or more of the following conditions:  poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, and/or failure to demonstrate promotion potential.  An honorable discharge or general discharge could be issued under this program.  

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JGH” as the appropriate code to assign enlisted Soldiers involuntarily discharged under the provisions of Army Regulation
635-200, Chapter 5 (Expeditious Discharge Program), paragraph 5-31, based upon failure to maintain acceptable standards for retention.

17.  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.

18.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he was not afforded the opportunity to consult with legal counsel.  He also contends his records should be corrected by removing all documents and letters that contain lies and were used to support his separation, which resulted in his discharge from the Army prior to completing the entire term of his enlistment.  He further contends that his records should be updated to show all of his “merits.”

2.  The evidence of record shows the applicant completed the Cannon Fire Direct Specialist course on 20 February 1979, was awarded MOS 13E1O (Cannon Fire Direct Specialist) on 20 February 1979, and that this information is recorded in his military service records and on his DD Form 214.

3.  The evidence of record shows the applicant was advanced to the rank of PV2/E-2 on 11 April 1979 and that this information is recorded in his military service records and on his DD Form 214.  The evidence or record also shows that PV2/E-2 was the highest rank the applicant attained during his military service.  In this regard, there is no evidence of record, and the applicant provides insufficient evidence to support his claim, that he was erroneously or improperly denied promotion or advancement to the rank of PFC/E-3.  Therefore, the applicant is not entitled to correction of his records concerning his grade of rank.

4.  The evidence of record shows the applicant was awarded the Marksman Marksmanship Qualification Badge with (M16) Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar and that this information is recorded in his military service records.  However, the evidence of record shows 
that the Sharpshooter Marksmanship Qualification Badge with Grenade Bar is not recorded in Item 26 of his DD Form 214.  Therefore, it would be appropriate to correct the applicant’s discharge document to show this badge.

5.  There is no evidence, and the applicant fails to provide sufficient evidence, to show that he was neglected by military doctors.  There is also no evidence that Army medical officials made a determination that the applicant was unfit because of physical disability to reasonably perform the duties of his office or grade of rank.  In fact, the evidence of record shows that the applicant obtained the clearance of the Medical Treatment Facility official prior to his departure from Germany and discharge from the U.S. Army.  Therefore, there is insufficient evidence to support the applicant’s claim regarding separation based on physical disability.

6.  The evidence of record shows that the applicant was afforded the opportunity to consult with legal counsel and, on at least 2 occasions (i.e., 23 March 1979 and 11 July 1979), the applicant waived and/or declined the opportunity to consult with counsel.  Thus, the evidence of record refutes the applicant’s claim that he was not afforded the opportunity to consult with legal counsel.  

7.  The evidence of record shows that the applicant’s commander recommended his discharge under the EDP based upon the applicant’s failure to adapt to military life; his attitude that he could do what he wanted to do when he wanted to do it; counseling of the applicant on numerous occasions by the commander and other members of the applicant’s chain-of-command, to no avail; the applicant’s lack of promotion potential; and that all rehabilitative efforts of the applicant were without success.  In this regard, the evidence of record does not support the applicant’s claim that the documentation used in support of the commander’s recommendation for the applicant’s discharge under the EDP contained lies or was otherwise inaccurate.  Moreover, the evidence of record shows that the applicant was notified of the reasons for his proposed discharge and also afforded the opportunity to provide statements in his own behalf, but chose not to submit statements.  In this regard, there is no evidence, and the applicant provides insufficient evidence, to support his claim that the information and documents used in support of his discharge contained lies or was inaccurate. 

8.  The evidence of record shows that documents filed in the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; to show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing 
evidence showing that the document is untrue or unjust.  The applicant provided insufficient evidence to show that the documents in his OMPF are untrue or unjust in this case.  Therefore, it is concluded that the documents filed therein are properly filed and should not be removed from the applicant's OMPF.

9.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and the applicant’s rights were protected throughout the separation process.  The evidence of record further confirms the applicant voluntarily consented to the discharge and that he was discharged under honorable conditions on 23 August 1979.  Therefore, the applicant is not entitled to correction of his DD Form 214 with respect to the authority or reason for his discharge, or to show that he completed the entire period of his 3-year enlistment.

10.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____X___  __X____  __X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to Item 26 of his DD Form 214 the “Sharpshooter Marksmanship Qualification Badge with Grenade Bar.”


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the removal of documents related to his separation action that are filed in his military service records, completion of the entire term of his enlistment, and/or separation based on physical disability.



      	___________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)                                         AR20080007272



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ABCMR Record of Proceedings (cont)                                         AR20080007272



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