IN THE CASE OF:	  

		BOARD DATE:	        3 September 2008

		DOCKET NUMBER:  AR20080008607 


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 general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was assigned to Germany and was told he would have to serve an 18-month tour.  The applicant states, “They had me believing I had to do the entire 3 years and went depressed and uncontrollable about 6 months prior to discharge.”  He continues that if he was not lied to he believes that he would not have failed in completing his 3 years.

3.  The applicant provides no additional documentation in support of this case.

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 November 1979 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 11B (Infantryman).

3.  On 27 February 1980, the applicant arrived in Germany and was assigned to Company C, 3d Battalion, 28th Infantry.

4.  A DA Form 2496 (Disposition Form), dated 25 September 1980, shows the applicant's bachelor/unaccompanied first-termer three year enlistee tour length was adjusted and his date of expected return from overseas (DEROS) was adjusted to 19 January 1982 (an 18-month tour).

5.  On 31 October 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to be at his appointed place of duty.

6.  On 18 December 1980, the applicant accepted NJP under Article 15, UCMJ, for willfully disobeying a lawful order.

7.  On 31 December 1980, the applicant accepted NJP under Article 15, UCMJ, for breaking restriction.

8.  On 26 January 1981, the applicant accepted NJP under Article 15, UCMJ, for stealing two pieces of jewelry from the Army and Air Force Exchange.

9.  On 11 May 1981, the applicant accepted NJP under Article 15, UCMJ, for failing to be at his appointed place of duty.

10.  On 21 May 1981, the applicant underwent a psychiatric evaluation.  He was diagnosed with no mental disease.  The military psychiatrist determined that there was no evidence to indicate the presence of significant, ongoing psychopathology.  The applicant's ability to tolerate frustration appeared to be limited and his social skills were judged to be marginal.  He was cleared psychiatrically for any administrative action deemed appropriate by his commander.

11.  A memorandum, dated 31 July 1981, shows that the brigade chaplain had counseled the applicant on one other occasion, on 29 July 1981.  The memorandum shows that the applicant was interviewed in depth.  The chaplain stated, “Private R____ demonstrated severe depression throughout the interview and indicated at the beginning of our session that he was contemplating suicide.”

12.  The chaplain stated, in effect, that the applicant stated that his absences without leave and other behavior for which UCMJ action was rendered had all been designed to convince his commander that he wanted out of the Army.  Given many efforts, there was nothing the chaplain could do throughout the interview that directed the applicant's attention in a positive direction.  The chaplain further stated, “What little I learned of his background reveals that he entered the Army to escape ‘Street Gang Retribution’ and has been trying to get out.  Based on this exposure, I consider him apathetic, dysfunctional, immature, and dangerous to others in a military organization where all of us depend on each other as Soldiers to be responsible to each other.”  The chaplain strongly recommended that it would be in the best interest of the Army to separate the applicant.

13.  On 31 July 1981, the applicant accepted NJP under Article 15, UCMJ, for being absent without leave (AWOL) for the period 14 July 1981 through 17 July 1981.

14.  On 31 July 1981, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 13, for unsuitability-inaptitude.  The reason cited by the commander was that the applicant had five Article 15s, two for failures to repair, one for shoplifting, one for breaking restriction, and one for consuming alcohol, and that the applicant was a rehabilitative transfer.

15.  On 10 August 1981, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant declined to submit a statement on his own behalf.

16.  On 4 September 1981, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer recommendation and directed the applicant receive a general under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 13, for unsuitability-inaptitude.  On 17 September 1981, the applicant separated from the service after completing 1 year, 10 months, and 2 days of creditable active service and 3 days lost time due to AWOL.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time provided, in pertinent part, that a member could be separated when it is determined that he or she is unqualified for further military service because of unsuitability.  Commanders will separate a Soldier for unsuitability when it is clearly established that, in the commander’s judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his command lied to him about having to complete a 3-year tour in Germany that resulted in his being depressed and uncontrollable prior to discharge.

2.  Evidence of record shows the applicant's overseas tour was adjusted to an 
18-month overseas tour in Germany in September 1980.  There is no evidence and the applicant has not provided evidence that shows his command lied to him about completing a 3 year tour in Germany.  Therefore, there is no basis for this argument.

3.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

4.  In the absence of 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.

5.  The applicant's records show that he received six Article 15s, had two failures to repair, had been charged for shoplifting, broke restriction, had disobeyed a lawful order, and had an AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.


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)                                         AR20080008607





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ABCMR Record of Proceedings (cont)                                         AR20080008607



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