IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080007292 


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 an upgrade of his undesirable discharge.

2.  The applicant states, in effect, that the character of service he was given at the time of his discharge was not appropriate considering the circumstances leading to his discharge.  He also states that his first enlistment ended up in an undesirable discharge, characterized as under other than honorable conditions, and that during his second enlistment, the recruiter told him he would fix the records.  

3.  The applicant provided the following additional documentary evidence in support of his application: 

	a.  DD Forms 214 (Report of Separation from Active Duty), dated 31 January 1973 and 16 September 1974; 

	b.  self-authored statement, dated 10 April 2008;

	c.  applicant’s brother’s statement, dated 10 April 2008;

	d.  Case Summary, dated 14 July 1971, Hawthorn Center, Department of Community Health, Northville, Michigan;

	e.  Psychological Evaluation, dated 4 December 2007, Austin Counseling and Evaluation, Austin, Texas;

	f.  Vocational Evaluation, dated 4 December 2007, Austin Counseling and Evaluation, Austin, Texas;

	g.  Neuropsychological Evaluation, dated, 22 January 2006, Austin Counseling and Evaluation, Austin, Texas; and

	h.  Psychological Assessment, dated 12 October 2007, Austin Counseling and Evaluation, Austin, Texas.      

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 records show that he enlisted in the Regular Army for a period of 3 years on 31 January 1973.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade he attained during this period of military service was private (PV2)/E-2.

3.  The applicant's record shows that he was awarded the National Defense Service Medal.  His records do not reveal any significant acts of valor during his military service.  

4.  The applicant's record reveals an extensive history of disciplinary problems which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 7 June 1973, for committing an assault against another Soldier by striking him with a grass cutting swing blade, on or about 31 May 1973.  His punishment consisted of forfeiture of $50.00 pay per month for 1 month, 7 days of restriction, and 7 days of extra duty; 

	b.  on 8 June 1973, for leaving his place of duty without authority, on or about 6 June 1973, and for disobeying a lawful order, on or about 7 June 1973.   His punishment consisted forfeiture of $75.00 pay per month for 1 month, 14 days of restriction, and 14 days of extra duty;

	c.  on 22 August 1973, for disobeying a lawful order to get into the proper uniform and join the physical training formation, on or about 14 August 1973.  His punishment consisted of 7 days of restriction, and 7 days of extra duty; 

	d.  on 27 September 1973, for being absent without leave (AWOL) during the periods from on or about 12 September 1972 through on or about
14 September 1973, and from on or about 14 September 1973 through on or about 16 September 1973.  His punishment consisted forfeiture of $79.00 pay per month for 1 month, 7 days of restriction, and 7 days of extra duty;

	e.  on 1 October 1973, for being found by the Charge of Quarters (CQ) drunk and disorderly after lights out and physically and orally resisting reasonable efforts to care for his condition, on or about 29 September 1973.  His punishment consisted of forfeiture of $70.00 pay per month for 1 month, 7 days of restriction, and 7 days of correctional custody (to begin on 9 October 1973).  However, on 11 October 1973, by order of the officer who imposed the punishment, the applicant’s restriction was set aside and all rights, privileges, and property affected by that portion of the sentence were restored; and

	f.  on 26 October 1973, for disobeying a lawful order of a superior commissioned officer, on or about 7 October 1973.  His punishment consisted forfeiture of $84.00 pay per month for 1 month and 7 days of extra duty.  The applicant appealed the imposed punishment on the same day.  However, on 28 October 1973, his appeal was denied by the superior officer acting on the appeal. 

5.  On 10 January 1974, the applicant’s immediate commander reviewed an existing Bar to Reenlistment Certificate and recommended it remain in place. The applicant's records do not contain a copy of the Bar to Reenlistment Certificate. 

6.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, his DD Form 214, dated 15 January 1974, shows that he was discharged for the good of the service, in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations), with a character of service of under conditions other than honorable.  This form further confirms he completed 11 months and 15 days of creditable military service.

7.  On 16 September 1974, the applicant was granted a waiver to reenter the Army and enlisted again in the Regular Army for a period of 3 years.  He proceeded to Fort Knox, Kentucky, for training.  

8.  On 3 October 1974, the applicant’s platoon sergeant (PSG) rendered a training cadre subjective evaluation report on the applicant.  The PSG stated that the applicant demonstrated deficiencies in motivation and self-discipline.  He was hostile toward the Army, unable to accept instructions, demonstrated substandard performance and insubordination, and lacked cooperation.  

9.  On 8 October 1974, the applicant was reported confined at the Fort Knox, Kentucky, Confinement Facility, in pre-trial confinement.  

10.  On 26 November 1974, the applicant’s immediate commander initiated action to discharge him from the Army, under the provisions of the Trainee Discharge Program (TDP), citing the applicant’s complete lack of motivation, discipline problems, and refusal to attempt to adjust to military life. 

11.  On 26 November 1974, the applicant acknowledged receipt of the notification of proposed discharge.  He consulted with counsel and was advised of the reasons for separation, the rights available to him, and further acknowledged that he understood that due to non-completion of requisite active duty time, the Veterans Administration [now known as the Department of Veterans Affairs] (VA) and other benefits normally associated with completion of honorable active duty service would be affected.  He waived making a statement or submitting a rebuttal on his behalf.

12.  On 26 November 1974, the applicant’s intermediate commander interviewed the applicant and determined that the applicant lacked the necessary aptitude and motivation to become a productive Soldier in the Army.  He further recommended immediate discharge.

13.  On 2 December 1974, the applicant was released from pre-trial confinement pending disposition of separation action.

14.  On 8 December 1974, the separation authority approved the applicant’s discharge and directed separation be accomplished within 96 hours.  Accordingly, the applicant was discharged on 12 December 1974.  The DD Form 214 he was issued at the time shows he was discharged for miscellaneous reasons under the Trainee Discharge Program with an honorable characterization of service.  This form further confirms the applicant had completed a total of 2 months and 27 days of creditable active military service.  

15.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his first discharge, dated 15 January 1974, within that Board's 15-year statute of limitations. 

16.  In his self-authored statement, dated 10 April 2008, the applicant states that he was always in trouble; so, he joined the Army to avoid going to jail, and that he had a very positive attitude about the Army.  However, his company commander in Germany leaked this detail to other Soldiers and the applicant found himself subject to harassment by others in his unit.  The harassment continued to get worse until he snapped and made another bad decision that led to his other than honorable conditions discharge.  He also adds that he had been homeless since his discharge and has recently moved in with his brother.  He asks that after 34 years of mental punishment and physical fatigue, all he wants is to live a normal life.  He feels this, coupled with his messy childhood, caused an injustice and hopes the Board would remove this injustice by upgrading his discharge.  

17.  The applicant’s brother also submitted a statement, dated 10 April 2008, in which he states that the injustice should be removed by upgrading the applicant’s discharge.  He does not believe anyone is fault here and thinks if the Army support system existed at the time, his brother would have sought help, and if his brother was diagnosed early enough, the Army would have declined enlisting him.  He concludes that in order for his brother to live a normal life, he needs this grave injustice removed so he may get the medical assistance he needs to become successful in life.  

18.  The applicant’s Hawthorn Center Case Summary, dated 14 July 2007, shows that the applicant had difficulties with adjustment at home and in school.  He was diagnosed with passive-aggressive character disorder.

19.  The applicant’s psychological report, dated 12 October 2007, in summary, shows that the applicant had a history of fights, arrests, academic challenges, and indiscipline.  He needs medical treatment and education on proper diet and treatment of diabetes, and job placement.

20.  The applicant’s psychological evaluation, dated 4 December 2007, in summary, shows that the applicant was experiencing a significant level of psychological stress, and suffered from diabetes and a depressive disorder.  

21.  The applicant’s vocational evaluation, dated 4 December 2007, in summary, shows that the applicant had difficulty with memory and cognitive organization and that he would benefit from social skills training.

22.  The applicant’s neuropsychological evaluation, dated 10 January 2008, in summary, shows that the applicant suffered from cognitive/personality disorders. 

23.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, at the time an undesirable discharge was normally considered appropriate.

24.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel from the Army.  Paragraph 5-33 of this regulation, in effect at the time, governed the Trainee Discharge Program (TDP).  This program provided for the separation of service members who lacked the necessary motivation, discipline, ability or aptitude to become productive Soldiers or have failed to respond to formal counseling.  The regulation essentially requires that the service member must have voluntarily enlisted; must be in basic, advanced individual, on the job or service school training prior to award of a military occupational specialty and must not have completed of more than 179 days of active duty on their current enlistment by the date of separation.  The regulation provided that Soldiers may be separated when they have demonstrated that they are not qualified for retention due to failure to adapt socially or emotionally to military life; cannot meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service 

25.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

26.  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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded.

2.  The applicant’s record is void of the facts and circumstances surrounding his discharge.  Nevertheless, it appears that the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily requested discharge from the Army under such circumstances.  It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  With respect to the applicant’s arguments:

	a.  the applicant’s early childhood difficulties as well as his unfortunate choice to become homeless subsequent to his discharge were noted.  Moreover, the applicant’s own statement; his brother’s statement; and his miscellaneous psychological, neurological, and vocational evaluations conducted some 35 years after the applicant’s discharge were also noted.  However, the applicant does not present any evidence of error or injustice related to his discharge; 

	b.  there is no evidence in the available records and the applicant did not provide any substantiating evidence that he was coerced into entering the Army. His enlistment contract shows that he willingly enlisted for a period of 4 years on 31 January 1973.  Furthermore, there is no evidence in the available records and the applicant did not provide any evidence that shows he was harassed or that his extensive history of indiscipline was a result of harassment by other Soldiers of his unit; and

	c.  the Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.

4.  Even after the applicant’s first discharge, he was given a second chance to serve and willingly enlisted in the Regular Army for a period of 3 years.  However, as his records indicate, he was hostile toward the Army, unable to accept instructions, demonstrated substandard performance and insubordination, and lacked cooperation, and was subsequently discharged.  


5.  There is no evidence in the available records, nor did the applicant provide documentation, to substantiate an upgrade of his discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge. 

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)                                         AR20080007292



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007292



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1