IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080007284 


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, that his general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was dedicated to military excellence, which is attested to by the letter of recommendation he received while stationed at Fort Dix, New Jersey.  The applicant also states that after a noncommissioned officer (NCO) began having an affair with his wife, he began having emotional and physical problems, this led to him being hospitalized twice and resulted in him being forced out of the Army.  The applicant concludes by stating he was a young man at the time and did not understand the “covert injustice that could lead a person to be forced out” of the Army under unfavorable conditions.

3.  The applicant provides no additional documentary 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's military service records show that he enlisted in the U.S. Army Reserve on 12 January 1982 and entered active duty in the Regular Army for a period of 4 years on 4 February 1982.  The applicant’s date of birth is 24 May 1959 and at the time of his entry on active duty he was 22 years of age.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 36C (Wire Systems Instrument Operator).

3.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 22 February 1983.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about 27 January 1983, at the 69th Signal Company, being disrespectful in language and deportment towards Sergeant R_______, a superior NCO who was then in the execution of his office, this being in violation of Article 92, UCMJ. The punishment imposed was reduction to private (PV2)/pay grade E-2 (suspended until 22 May 1983), a forfeiture of $100.00, and 14 consecutive days of extra duty as directed by the First Sergeant.  This document also shows that the applicant appealed the Article 15 proceedings and submitted matters in defense, mitigation, and/or extenuation.  After consideration of all matters presented in the appeal, the battalion commander denied the applicant’s appeal. He also noted in Item 11 (Attachments and/or Comments) that the applicant refused to sign an acknowledgement of the appeal process; however, the applicant was informed of the appeal and that the DA Form 2627 would be processed.

4.  The applicant's military service records contain a DA Form 4187 (Personnel Action), dated 6 September 1983, that shows the applicant’s duty status was changed from present for duty (PDY) to ordinary leave, effective 1200 hours,
15 July 1983.

5.  The applicant's military service records contain a DA Form 4187, dated
6 September 1983, that shows the applicant’s duty status was changed from ordinary leave to absent without leave (AWOL), effective 0001 hours, 31 August 1983.

6.  The applicant's military service records contain a DA Form 4187, dated
13 September 1983, that shows the applicant’s duty status was changed from AWOL to PDY, effective 1300 hours, 9 September 1983.

7.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 44 (Time Lost Under Section 972, Title 10, United States Code [USC] and Subsequent to Normal ETS [Expiration Term of Service]) of this document shows the applicant was AWOL for 9 days from 31 August 1983 through 8 September 1983.

8.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 15 September 1983. This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about 31 August 1983, without authority, absenting himself from his company, to wit:  69th Signal Company, 40th Signal Battalion, located at Fort Huachuca, Arizona, and remaining absent until on or about 9 September 1983, in violation of Article 86, UCMJ.  The punishment imposed was reduction to PV2/E-2, a forfeiture of $150.00, 14 days of extra duty, and 14 days of restriction.  This document also shows the applicant appealed the Article 15 proceedings and did not submit additional matters in defense, mitigation, and/or extenuation.  After consideration of all matters presented in appeal, the battalion commander denied the applicant’s appeal.  He also noted in Item 11 (Attachments and/or Comments) the applicant appeared before the appealing authority, but refused to sign Item 10 (Signature of Service Member) of the DA Form 2627; however, the applicant was informed of the appeal and that the DA Form 2627 would be processed.

9.  The applicant's military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 11 November 1983. This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about 25 October 1983 and
31 October 1983, four (4) specifications of using disrespectful language towards a superior NCO and two (2) specifications of willfully disobeying a lawful order given by a superior NCO, in violation of Article 91, UCMJ.  The punishment imposed was reduction to private (PVT)/pay grade E-1 and a forfeiture of $133.00 per month for 1 month.  This document also shows the applicant indicated he did not appeal the Article 15 proceedings.

10.  The applicant’s military service records contain a copy of Headquarters,
17th Signal Battalion (Germany), memorandum, dated 15 November 1983, subject:  Bar to Reenlistment [Applicant’s Name] and DA Form 4126-R (Bar to Reenlistment Certificate), undated.  This documentation shows the company commander documented his recommendation that the applicant be barred from reenlistment in the U.S. Army.  The reasons cited by the commander included
2 DA Forms 2627, dated 22 February 1983 and 15 September 1983, a pending DA Form 2627, and the applicant’s pending administrative discharge.  The documentation also shows the applicant indicated he had been furnished of copy of the commanding officer’s recommendation, that he had been counseled and advised of the basis for this action, and indicated he did not desire to submit a statement in his own behalf.  On 15 November 1983, the battalion commander approved the Bar to Reenlistment and notified the applicant of his right to appeal imposition of the Bar to Reenlistment within 15 working days.  However, there is no evidence that the applicant submitted an appeal to the Bar to Reenlistment.

11.  On 8 November 1983, the company commander notified the applicant that separation action was being initiated on him under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance.  The company commander’s recommendation of the applicant's separation was based on the fact that the applicant would not develop sufficiently to participate in further training and become a satisfactory Soldier; that he would be a disruptive influence in present or future duty assignments; that the circumstances forming the basis for the recommendation were likely to recur; and the applicant’s ability to perform duties effectively in the future, including potential for advancement or leadership, was unlikely.  The company commander also attached copies of
2 DA Forms 2627, dated 22 February 1983 and 15 September 1983, and
3 statements from superior NCO’s, dated 28 October 1983, 31 October 1983, and 31 October 1983, as supporting documents to the separation action.  The letter of notification also shows that the applicant was advised of his rights.

12.  On 8 November 1983, the applicant acknowledged with his signature that he had been advised by consulting counsel of the basis for the contemplated action to separate him from the Army for unsatisfactory performance and submitted a statement in his own behalf.  He also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to him and that he would be ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge.

13.  The applicant’s separation action contains a 3-page statement, undated, submitted by the applicant to his commander in which he states, “I willingly submit my resignation of further duty in the U.S. Army, in order that I may recooperate (sic) both physically and mentally from the wounds inflicted by my alleged comrads (sic) at arms.”  He also describes his personal experiences, both positive and negative, while serving in the U.S. Army.  In pertinent part, the applicant refers to certain financial matters and states, “[n]eedless to say it caused some severe financial problems that led to a number of marriage problems, such as mistrust and quarrels that usually needs no outside instigator.”

14.  The applicant’s separation action contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 1 November 1983.  This document shows that Lieutenant Colonel Roger A. N_____, Medical Doctor, evaluated the applicant and determined he had normal behavior, was fully alert and oriented, had a clear thinking process, normal thought content, and a depressed mood.  He also found the applicant able to distinguish right from wrong and was able to adhere to the right, that he had the mental capacity to understand and participate in board proceedings, he had no significant mental illness, and he met the retention standards prescribed in Army Regulation 40-501, Chapter 3.

15.  The applicant’s records show that the company commander recommended the applicant's separation from service under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance, and forwarded the separation action to the approving authority.  The basis for the company commander’s recommended action was that the applicant demonstrated a complete disregard for authority, had shown no improvement in duty performance, had become extremely substandard in all areas, and the commander did not consider it feasible or appropriate to retain the applicant in the U.S. Army.

16.  The lieutenant colonel serving as Commander, 17th Signal Battalion (Germany), concurred with the company commander’s recommendation and recommended the applicant be discharged under the provisions of Army Regulation 635-200, Chapter 13, and issued a General Discharge Certificate.

17.  On 17 November 1983, the colonel serving as Commander, 22nd Signal Brigade (Corps) (Germany), reviewed the proposed separation action.  The brigade commander waived the rehabilitative transfer requirement.  The applicant had no potential for useful service under conditions of full mobilization.  The commander approved the discharge under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance, and directed the applicant be furnished a General Discharge Certificate.

18.  The DD Form 214 (Certificate of Release or Discharge from Active Duty), issued to the applicant on the date of his separation, confirms the applicant was issued an under honorable conditions discharge.  This document also confirms that the authority for the applicant’s separation was Army Regulation 635-200, Chapter 13, Unsatisfactory Performance, and that the Separation Code was "JHJ."  The DD Form 214 further shows that, at the time of his discharge, the applicant had completed 1 year, 9 months, and 12 days of net active service during the period of service under review. 

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

20.  The applicant’s military service records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 13 January 1984, that shows he requested an upgrade of his under honorable conditions discharge to an honorable discharge based on allegations of harassment, unsubstantiated charges by his chain of command, and his medical condition during his military service.  On 6 May 1985, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence, determined that the applicant’s discharge was proper and equitable as to the characterization and reason.  Accordingly, the ADRB denied the applicant’s petition.

21.  The applicant’s military service records contain a copy of ABCMR Docket Number AC91-06363, dated 12 August 1991.  This documentation shows the applicant previously requested that his discharge be changed to a hardship discharge due to his hospitalized on 2 occasions during his military service.  This documentation also shows that, after thoroughly examining and considering the application and available records, the ABCMR denied the applicant’s request.

22.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 13 (Separation for Unsatisfactory Performance) of Army Regulation 635-200 provides that a member may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  The service of members separated because of unsatisfactory performance will be characterized as honorable or under honorable conditions as warranted by their military record.

23.  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. 
This regulation identifies the SPD code of “JHJ” as the appropriate code to assign enlisted Soldiers separated under the provisions of Army Regulation
635-200, Chapter 13, based on unsatisfactory performance.

24.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

25.  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.

26.  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 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 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 contends, in effect, that his general discharge under honorable conditions should be upgraded to an honorable discharge because he was a young man dedicated to military excellence; however, an NCO had an affair with his wife and he began having emotional and physical problems, which led to him being hospitalized twice and resulted in him being forced out of the Army.

2.  There is no evidence of record, and the applicant provides insufficient evidence, to support his claim that an NCO had an affair with his wife, which caused him emotional and physical problems.  In fact, in the applicant’s own statement that he submitted at the time of his separation processing, he acknowledged, “severe financial problems that led to a number of marriage problems, such as mistrust and quarrels.”   Thus, the evidence of record does not support the applicant’s claim.

3.  The evidence of record shows the applicant was 22 years of age when he entered active duty and 24 years of age when he went AWOL.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who also served in the U.S. Army during this period of time and successfully completed their military service commitment.  Additionally, the available evidence shows the physician who conducted the applicant’s psychological evaluation approximately 3 weeks prior to his separation determined the applicant’s behavior was normal, his thinking process was clear, his thought content was normal, he was mentally responsible, able to distinguish right from wrong, and able to adhere to the right.  In addition, the physician found the applicant met the retention standards prescribed in Army Regulation 40-501. Thus, the evidence of record refutes the applicant’s claim of emotional and/or physical problems as a basis for his separation.

4.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance was proper and equitable and in accordance with the regulations in effect at the time. Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, the evidence of record shows that the authority, narrative reason, and SPD Code recorded on the applicant’s discharge are valid.  Therefore, the applicant is not entitled to correction of the narrative reason for separation, SPD Code, or characterization of his service.

5.  The applicant’s record of service shows completion of less than 22 months of his 48-month enlistment.  In addition, during this period of military service, the applicant received non-judicial punishment on 3 occasions for incidents related to being disrespectful towards NCOs in language and deportment, failing to obey the lawful orders of NCOs, and being AWOL for a period of 9 days.  Thus, the evidence of record clearly shows the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

6.  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 

________  ________  ________  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)                                         AR20080007284



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ABCMR Record of Proceedings (cont)                                         AR20080007284



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