IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080009775 


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, upgrade of his general discharge to honorable. 

2.  The applicant states, in effect, he believes his discharge should be upgraded because he was given erroneous information by the recruiter in 1975 that eventually led to extenuating circumstances.  He also states that prior to enlisting he was advised that he could take his wife with him wherever he was stationed as long as it was peacetime.  He told the recruiter that he had to be sure of this because his wife came from an extremely abusive home life.  He graduated from basic training and advanced individual training and was sent to Fort Campbell, Kentucky, for his regular duty station.  The time came when he was advised that he was shipping out to Germany for a year.  He inquired as to making arrangement for housing for his wife and was told she would not be able to go with him.  He explained his predicament and was just laughed off for being naïve enough to believe what the recruiter told him.

3.  The applicant further states that he was only 18 years old and naturally trusting, therefore, he was thrown for a loop.  He and his wife approached the base chaplain and asked for help, but to no avail.  He could not send his unemployed wife back to the hell hole she came from.  He went absent without leave (AWOL) for about three weeks in Florida, then came to his senses, and turned himself into authorities at Fort Campbell.  After serving time in the stockade, he was subsequently discharged from the Army.  


4.  In support of his application, the applicant provides copies of his discharge initiation memorandum, his DD Form 214 (Certificate of Release or Discharge from Active Duty), a listing of his certificates, his 2008 Certificate of Appreciation, a character reference letter, letters honoring him as Fireman of the Year for 2008, and three newspaper articles pertaining to his achievements and rescues.

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 records show he enlisted in the Regular Army, in pay grade E-1, on 10 August 1975, for 4 years.  His DD Form 1966 (Enlistment/Reenlistment Agreement), dated 6 August 1975, Item 28a (Relatives), does not list a spouse or wife, this block is lined through.  Item 38 (Marital Status and Dependency), Line a (Are you now, or have you ever been married) is checked no, to indicate the applicant was not married at the time of his enlistment.  This agreement is annotated with the recruiter's and the applicant's signature.  

3.  The applicant completed basic combat and advanced training and was awarded military occupational specialty 11B, Infantryman.  He was advanced to pay grade E-2 on 18 September 1975.

4.  Item 4 (Assignment Consideration), of the applicant's DA Form 2-1, Personnel Qualification Record, Part II, shows the applicant had a guaranteed assignment to the 101st Airborne Division, Fort Campbell, Kentucky.  As part of this enlistment option, he was guaranteed stabilization at this military post for the period of one year.  The evidence shows the applicant arrived on station at Fort Campbell on 19 November 1975 and he would not normally have been moved on a permanent change of station until the following November unless the 101st Airborne Division was deployed to Germany, but it was not.

5.  The applicant's records failed to show orders were published reassigning him to Germany.  His service records only show his last and only permanent change of station was Fort Campbell.

6.  On 19 February 1976, the applicant was convicted by a special court-martial of one specification of being AWOL from 5 January to 3 February 1976.  The applicant was sentenced to a reduction to pay grade E-1, a forfeiture of $75.00 pay per month for 2 months, and confinement at hard labor for 45 days.  The sentence was adjudged on 19 February and approved on 11 March 1976.  

7.  On 24 March 1976, the applicant underwent a mental status evaluation.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was level, his thinking process was clear, and his thought content was normal.  After the evaluation, the applicant was found to have the mental responsibility to distinguish right from wrong and the mental capacity to understand and participate in board proceedings.

8.  On 16 March 1976, the applicant’s unit commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 5-37.  The unit commander also advised that he was recommending he be furnished a General Discharge Certificate.  He cited, as the reasons for the proposed actions:  the applicant's failure to assimilate into the Army environment as evidenced by his attitude and the fact he had received one court-martial.  Despite the counseling of the Brigade Cadre and the professional staff, the applicant had failed to develop into a satisfactory Soldier.

9.  On 17 March 1976, after consulting with counsel, the applicant waived his rights, consented to the proposed discharge action, and elected not to submit a statement in his own behalf.  He acknowledged that if he was furnished a general discharge, under honorable conditions, he could expect to encounter substantial prejudice in civilian life.

10.  On an unspecified date, after 19 March 1976, the separation authority approved the recommendation for the applicant's discharge, and directed that he be furnished a General Discharge Certificate.  He also directed that the applicant's personnel records be annotated to reflect the applicant was discharged for failure to meet acceptable standards for continued military service. 

11.  The applicant was discharged, in pay grade E-1, on 26 March 1976, under the provisions of Army Regulation 635-200, paragraph 5-37.  He was credited with 4 months and 27 days of total active service.  He was also credited with 
80 days of lost time due to being AWOL and in confinement.  

12.  The SPD (Separation Program Designator) KMN was entered on his DD Form 214.  This SPD translates to separation under the provisions of Army Regulation 635-200, for failure to maintain acceptable standards for retention.

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

14.  The applicant submits three character reference letters attesting to his valuable work as a firefighter, his recognition as being honored as Fireman of the Year for 2008, his devotion, his leadership, and volunteerism.  None of these statements have a statement recommending an upgrade of the applicant's discharge.  The applicant also lists his many certificates received as a fireman and his achievements earned from his performance as a fireman.

15.  Army Regulation 635-200, chapter 5, in effect at the time, set forth the basic authority for the separation of enlisted personnel for the convenience of the government.  Separation under this chapter included provisions for discharging Soldiers for a variety of reasons.  Paragraph 5-37 stated, in pertinent part, that those personnel whose performance of duty, acceptability for the service, and potential for continued effective service, which fell below the standards required, would be discharged.  It also stated that discharge under this paragraph was limited to personnel who failed to be advanced to the pay grade of E-2 after 4 months of active service and personnel who failed to demonstrated potential to justify advancement to the pay grade of E-3 after attaining the normal time-in service and time-in-grade criteria for promotion to the pay grade of E-3, without wavier.  The separation authority could direct a general discharge or when other circumstances clearly warranted an honorable discharge.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to honorable.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.  
2.  The applicant's contentions have been noted; however, his records show he was not married at the time of his enlistment.  Even so, had he been married and had he been assigned to Germany, it is true, he could have taken his wife with him; however, at his own expense.  Travel entitlement at Government expense and the authorization for dependents to reside in Government quarters does not accrue to Soldiers until a certain pay grade and service requirements are met.  As a new enlistee, the applicant would have been ineligible for these benefits which accrue with service.

3.  The evidence shows the applicant was convicted by a special court-martial of being AWOL from 5 January to 3 February 1976 and as a result, he was reduced to pay grade E-1.  The applicant's commander stated he had received counseling to improve his conduct and attitude.  By the applicant's conduct and actions, the applicant's unit commander felt that he had failed to assimilate into the Army environment.  Because he had failed to develop into a satisfactory Soldier, the commander had no option but to recommend his discharge.  His discharge was approved and direction was given that his personnel records would be annotated to reflect he was discharged for failure to meet acceptable standards for continued military service.

4.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he was not then, and is not now, entitled to a fully honorable discharge.

5.  The applicant has provided no evidence to show that his release from active duty was unjust.  The documentation submitted in support of his application was reviewed; however, the documentation provided neither probative evidence nor a convincing argument in support of an upgrade of his general discharge.  The applicant’s failure to meet acceptable standards for retention diminished the quality of his service below that meriting a fully honorable discharge.

6.  The evidence of record confirms the applicant’s release from active duty processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons therefore were appropriate, considering all the facts of the case.  

7.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

8.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his general 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)                                         AR20080009775



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ABCMR Record of Proceedings (cont)                                         AR20080009775


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