IN THE CASE OF:	  

		BOARD DATE:	        5 August 2008

		DOCKET NUMBER:  AR20080007939 


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 discharge and correction of the narrative reason for separation to show “For the Convenience of the Government,” with corresponding separation and reenlistment codes 

2.  The applicant states that:

	a.  he is a proud and patriotic American of Hispanic descent, who enlisted in the Regular Army at the age of 18 to serve his country.  However, he suffered from Dyslexia since childhood, but was not told about it, by his mother, until after his discharge.  He still did well in basic combat and advanced individual training.  However, when he arrived at Fort Lewis, Washington, he encountered racial prejudice, discrimination, and harassment, particularly by one lieutenant, which caused/contributed to his misconduct.  Furthermore, when was married at the age of 19, the Army began to interfere with his marriage and he started suffering from depression, withdrawal, aggression, alienation from others, and symptoms consistent with Post Traumatic Stress Disorder (PTSD); 

	b.  he attempted to remedy the situation by requesting a transfer from his unit, but his request was denied.  He was not provided with counseling or a rehabilitative transfer and the only counseling he received was disciplinary counseling.  Additionally, there was a personality conflict between him and his chain of command, resulting in further unnecessary discipline and denial of his transfer;

	c.  he was misled by Army officials to believe that after an indefinite period of time and good conduct, his discharge would automatically be upgraded to honorable.  This automatic upgrade appears to have been in reference to the Department of Defense Special Discharge Review Program (SDRP).  Yet, to this day, his discharge is still not upgraded as he was led to believe; 

	d.  in a similar case, another individual who suffered from personality disorder had his discharge upgraded despite the fact that he committed more serious offenses to include a conviction by a Special Court-Martial; and 

	e.  despite his medical condition, after discharge, he worked hard and became a police officer.  He is presently working as a supervisor in a juvenile justice facility for troubled youths. 

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

	a.  DD Form 214 (Report of Separation or Discharge from Active Duty), dated 30 March 1977;

	b.  Statement, dated 2 April 2008, from the applicant’s mother regarding his Dyslexia;

	c.  An Internet printout, dated 6 December 2007, regarding Dyslexia;

	d.  Certificate of Training, dated 15 December 1991, The Commission on Criminal Justice Standards and Training;

	e.  Undated letter, certifying the applicant’s employment with the Crescent City Police Department, Crescent City, Florida;  

	f.  Standard Form 93 (Report of Medical History), dated 15 December 1976; and  

	g.  Emergency Service Record, dated 8 October 1976

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 he was born on 7 October 1957 and enlisted in the Regular Army, at the age of 18 years and 3 months, for a period of 4 years on 29 January 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.  

3.  The applicant’s records further show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not reveal any acts of valor or special recognition during his military service.

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

	a.  on 6 October 1976, for being absent without leave (AWOL) during the period from on or about 13 September 1976 through on or about 21 September 1976. His punishment consisted of reduction to the rank/grade of private (PVT)/E-1, forfeiture of $180.00 pay for one month, and confinement at a correctional custody facility (CCF) for 21 days.  The applicant appealed his punishment on 6 October 1976; however, on 8 October 1976, his appeal was denied by the next higher/senior commander.  Furthermore, the applicant refused to sign the Article 15, indicating that he has seen the action taken on his appeal, and stated that “he would prefer not to sign regardless of the consequences”; 

	b.  on 20 December 1976, for being AWOL during the period from on or about 1 December 1976 through on or about 8 December 1976.  His punishment consisted of forfeiture of $180.00 pay for two months and 30 days of extra duty; and

	c.  on 28 January 1977, for twice absenting himself from his appointed place of duty, on or about 13 January 1977 and on or about 17 January 1977, and for being AWOL during the period from on or about 18 January 1977 through on or about 20 January 1977.  His punishment consisted of forfeiture of $180.00 pay per month for two months (suspended for 60 days) and 20 days of extra duty.

5.  Item 21 (Time Lost) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was reported AWOL from 13 September 1976 to 20 September 1976, 1 December 1976 to 7 December 1976, and 18 January 1977 to 19 January 1977.  He was also reported confined from 22 November 1976 to 23 November 1976.   

6.  The applicant’s records also reveal a history of counseling by his immediate commander and platoon leader as follows:  

	a.  on 22 September 1976, he was counseled by his company commander for his lack of respect to authority, insubordination, responsibilities as a Soldier, and his desire to get out of the Army; and 

	b.  on 17 November 1976, he was counseled by his platoon leader for his attitude, job performance, personal problems, and missing from duty.

7.  On 15 March 1977, the applicant’s immediate commander notified the applicant of his intent to initiate action to discharge him from the Army under the provisions of the Department of the Army Message 111445Z, dated November  1974 (Expeditious Discharge Program-EDP) and paragraph 5-37, of Army Regulation 635-200 (Personnel Separations), by reason of failure to adapt socially or emotionally, failure to demonstrate promotion potential, poor attitude, lack of motivation, and lack of self-discipline.  The immediate commander recommended a General Discharge Certificate.  

8.  On 15 March 1977, the applicant acknowledged receipt of the notification memorandum.  He consulted with legal counsel and was advised of the basis for the contemplated separation from the Army under the provisions of paragraph   5-37 of Army Regulation 635-200, the effect on future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him.  The applicant voluntarily consented to this separation and declined making a statement.  He further acknowledged that he understood that if he were issued a General Discharge Certificate, he could expect to encounter substantial prejudice in civilian life. 

9.  On 16 March 1977, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 5-37 of Army Regulation       635-200, EDP.  The immediate commander remarked that the applicant proved 
impervious to all counseling attempts and lacked any form of self-discipline or motivation which would warrant his retention in the Army.  All attempts to
rehabilitate the applicant failed due to his lack of concern and adaptability.  He was a substandard individual who was not tolerated by his chain of command any longer.  The immediate commander recommended a General Discharge Certificate.  In addition to the immediate commander’s remarks, other members of the applicant’s chain of command stated the following:

	a.  the applicant’s platoon leader stated that the applicant lacked self-control and constantly challenged the authority of his superiors.  He continually failed to be in the proper place at the proper time in the proper uniform.  After his AWOL and confinement, he was counseled repeatedly by the chain of command; yet, he still displayed the same routine of disrespect and lack of motivation;

	b.  the applicant’s First Sergeant (1SG) stated that the applicant clearly demonstrated his inability to accept instructions and showed hostility toward the Army.  He absented himself from duty on numerous occasions and became a quitter.  He lacked cooperation with peers and supervisors, possessed an inferior desire to meet standards, had a negative attitude, and demonstrated substandard performance; 

	c.  the applicant’s platoon sergeant remarked that the applicant demonstrated an inability to perform his duties in a military manner.  He had a poor attitude, lacked motivation and self-discipline, demanded strict counseling, and was unable to demonstrate even the minimal effort in his duties; and

	d.  the applicant’s squad leader/direct supervisor stated that he had plenty of opportunity to observe the applicant and that he concluded that despite the numerous performance counseling he conducted with the applicant, he showed a steady decline instead of improvement.  He constantly expressed a desire to get out of the Army no matter what it took.  He was a constant disrupter of the squad and in no way helped the Army or supported the unit’s mission.

10.  On 16 March 1977, the separation authority approved the applicant's discharge for failure to meet acceptable standards for continued military service and directed that he receive a General Discharge Certificate.  On 30 March 1977, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 1 year, 1 month, and 13 days of creditable active military service and had 19 days of lost time due to AWOL and confinement.  Item 9c (Authority and Reason) of his DD Form 214 shows the entry, “Paragraph 5-37, AR 635-200; SPD JGH,” Item 9c (Character of Service) shows the entry “Under Honorable Conditions,” and Item 10 (Reenlistment Code) shows the entry “RE-3.”
11.  In her statement, dated 2 April 2008, the applicant's mother stated that the applicant was diagnosed with Dyslexia when he was 10 years old and that she did not make him aware of this condition until after his discharge from the Army.

12.  The applicant provided an Internet printout, dated 6 December 2007, that talks about the complications associated with Dyslexia.  

13.  There is no indication showing that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  The pertinent paragraph in Chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the Expeditious Discharge Program.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

15.  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.

16.  On 4 April 1977, the DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD SDRP, required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either 
honorable or general be issued in the case of any individual who had either 
completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

17.  In October 1978, Public Law 95-126 was enacted.  This legislation required the service Departments to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to Department of Veterans Affairs (DVA) benefits, unless they had been entitled to such benefits before their SDRP review.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant voluntarily consented to his discharge.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed, reason for separation, and reentry code, therefore were appropriate considering all the facts of the case.

2.  The applicant's record of service shows that he displayed an inability to adjust to the regimentation of military life as reflected by his continuous disciplinary history of NJP under the provisions of Article 15 of the UCMJ and multiple instances of AWOL.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

3.  With respect to the applicant’s arguments, the following is noted:

	a.  the applicant was 18 years of age at the time of his enlistment and 19 years of age at the time of his offenses; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, there is no evidence in the available records and the applicant failed to provide any evidence that shows his acts of indiscipline were the result of his age;

	b.  there is no evidence in the available record and the applicant failed to provide any evidence that shows he suffered from discrimination, harassment, prejudice, or mistreatment, or that he addressed such problems with his chain of command or made any efforts through any of the support channels available at his duty location at the time to alleviate the alleged problems.  Furthermore, there is no evidence that his acts of indiscipline were the result of discrimination, harassment, prejudice, or mistreatment;
	
	c.  there is no evidence in the available records and the applicant failed to provide any evidence that shows he suffered from or was diagnosed with dyslexia or PTSD during his military service.  His unfortunate condition and his mother's statement, some 31 years after his discharge, as well as his post- service successful work were noted.  However, the applicant does not present any evidence of error or injustice related to his discharge; 

	d.  the applicant's records clearly show that he was provided with multiple performance and disciplinary counseling by various members of his chain of command, yet he failed to respond positively, as evidenced by his continued acts of indiscipline;

	e.  the DOD SDRP applied to service members who had less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  The applicant was discharged on 30 March 1977.  He does qualify for a review of his discharge under this program; and

	f.  the Army has never had a policy where a discharge would automatically be upgraded due to passage of time.  There is no evidence in the available record and the applicant failed to provide any substantiating evidence that shows he was misled or promised an automatic upgrade by any Army officials.

4.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


															XXX
      ______________________
               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)                                         AR20080007939



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ABCMR Record of Proceedings (cont)                                         AR20080007939



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