IN THE CASE OF:	  

		BOARD DATE:	  18 September 2008

		DOCKET NUMBER:  AR20080010444 


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

2.  The applicant states, in effect, the introduction of the Article 15 proceedings of nonjudicial punishment imposed against him in the Consideration of Evidence (COE) portion of the Record of Proceedings (ROP) of his original request for upgrade of his discharge is inflammatory.  He also states that in light of Army Regulation 635-200, the commander’s judgment was used in the separation process. The further states that the COE shows he consulted with a Judge Advocate General (JAG) Corps officer (on 9 January 1984), and he elected to make a statement on his own behalf; however, any statement he may have made is unavailable.  The applicant notes that, based on his medical examination on 
10 January 1984, he was found capable of participating in the separation process.  The applicant concludes by stating the preponderance of evidence was not met to justify a general discharge:

     a.  The applicant cites Article 27, Annotated Code of Maryland, that states in part, “the mere physical presence of the accused; both before and after; coupled with a denial does not add up to proof.  Particularly, when evidence is offered of extenuating circumstances (common-law).”  The applicant also cites a Maryland Court of Appeals ruling that states in part, “the ultra vires acts of others, may take many forms, the presence of which renders all contracts, agreements, and orders moot.”
     b.  The applicant states that the Article 15 proceedings as determining factors, when taken into consideration with his quietness and Army Regulation 635-40, constitutes common-law and renders the commander’s judgment in error.  The applicant also states that his quietness, coupled with the medical examination determination, equals observation of the Fifth Amendment of the United States Constitution; at common-law, anything can be utilized as evidence that shows reasonableness and that his quietness, not justifying personal expenditures, meets this element.

3.  The applicant provides a copy of Army Board for Correction of Military Records, Docket Number AR20080000847, dated 4 April 2008.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080000847, on 4 April 2008.

2.  The applicant’s military service records shows that he enlisted in the U.S. Army Reserve on 26 March 1981 and entered active duty in the Regular Army for a period of 3 years on 2 July 1981.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist). 

3.  The applicant’s military service records contain a copy of a DA Form 4126-R (Bar to Reenlistment Certificate), dated 15 June 1983.  Item 12 (Other Factual and Relevant Indicators of Untrainability or Unsuitability) shows that the captain serving as the applicant’s company commander entered the following, “PFC [Applicant’s Last Name] has shown apathy in that he is reluctant to perform his duties in accordance with military standards.  SM [Service Member] has been told on numerous counseling statements to improve, but has not done so.  This type of performance will not be tolerated by this unit or the United States Army.”  Section II (Individual’s Review) of the DA Form 4126-R shows the applicant was furnished a copy of the commanding officer’s recommendation, that he had been counseled and advised of the basis for this action, and indicated that he desired to submit a statement in his own behalf.  This item also shows that the commander attached 8 inclosures to the DA Form 4126-R that included, in pertinent part, 4 counseling statements, dated 4 January 1983, 15 February 1983, 2 March 1983, and 25 May 1983; and the applicant’s statement.  This item further shows that the applicant placed his signature on the document:

     a.  Attached to the DA Form 4126-R, in pertinent part, are the 4 DA Forms 4856 (General Counseling Forms) that document the specific circumstances the applicant was counseled on, which occurred on 3 January 1983, 9 February 1983, 2 March 1983, and 24 May 1983.  These documents show the applicant received performance counseling for failing to have his uniform up to military standards and failing to follow a lawful order to clean his room before departing for work.

     b. Attached to the DA Form 4126-R is the applicant’s statement that provides his reasons that he should not be barred from reenlistment.  The applicant states, in effect, that he thinks his behavior and personal appearance have drastically improved, he has been at his appointed place of duty on time, and the noticeable decline in the number of counseling statements supports his improved behavior.  The applicant added that he was well on his way to becoming a more disciplined and productive Soldier.

     c.  On 21 June 1983, the lieutenant colonel serving as the Commander,
530th Supply and Service Battalion, Fort Bragg, North Carolina, approved the Bar to Reenlistment.  The battalion commander also directed that the applicant be informed of the action; of his right to submit an appeal through command channels; of the provisions for reviewing, continuing, and removing a bar to reenlistment; and that upon review of the bar to reenlistment in 6 months, as well as 30 days prior to expiration term of service (ETS), if character and performance warrant elimination from service, action will be taken to initiate proceedings under the provisions of Army Regulation 635-200.

4.  The applicant’s military service records contain 4 DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ) that were previously introduced in the COE of the ROP of the applicant’s original case.  The evidence of record shows that nonjudicial punishment was imposed against the applicant on 9 June 1983, less than 2 weeks prior to the date the bar to reenlistment was approved by the battalion commander.  The evidence of record also shows that nonjudicial punishment was imposed against the applicant on 3 other occasions
(i.e., 26 August 1983, 11 November 1983, and 23 November 1983), all subsequent to the date the bar to reenlistment was approved by the battalion commander.

5.  The applicant’s military service records contain a copy of the applicant’s administrative separation packet:

     a.  On 6 January 1984, the company commander notified the applicant that he intended to recommend him for administrative separation from the Army under the provisions of Army Regulation 635-200, Chapter 13, based on 4 Article 15s, numerous derogatory counseling statements, apathy, defective attitude, and an unsatisfactory work performance.  The applicant was also advised that he may receive a General Discharge Certificate as a result of this action.  This document also shows that the commander advised the applicant of his rights.

     b.  On 9 January 1984, the applicant consulted with legal counsel and acknowledged with his signature that he had been advised of the basis for the contemplated action to separate him from the Army for unsatisfactory performance.  This document shows that the applicant was advised 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.
Paragraph 4 of this document, in pertinent part, indicates, ”Statements in my own behalf (are) (are not) submitted herewith (Incl. ___).”  This document also shows that the phrase “(are not)” was lined-thru; however, an entry was not placed in the area designated “(Incl. ____)” to confirm that the applicant actually submitted an(y) enclosure(s).

     c.  The applicant's counsel certified that he had advised the applicant of the basis for the contemplated separation and its effects, the rights available to him and the effect of a waiver of his rights, and that the applicant personally made the choices indicated in the foregoing statement.

     d.  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 Special Court-Martial Convening Authority for action.  The basis for the company commander’s recommended action was the applicant’s 4 Article 15s, numerous derogatory counseling statements, apathy, defective attitude, and unsatisfactory work performance.  The commander also recommended the applicant receive a General Discharge Certificate.

     e.  The applicant’s separation packet and military service records contain an SF 89 (Report of Medical History), dated 10 January 1984, that was completed by the applicant at the time of his medical examination prior to his separation from active duty.  The reverse side of this document, in pertinent part, contains the statement, “I certify that I have reviewed the foregoing information supplied by me and that it is true and compete to the best of my knowledge.  I authorize any of the doctors, hospitals, or clinics mentioned above to furnish the Government a complete transcript of my medical record for purposes of processing my application for this employment or service.”  This document also shows that the applicant placed his signature on the document certifying that he had reviewed the foregoing information supplied by him and that it was true and complete to the best of his knowledge.

     f.  The applicant’s separation packet and military service records contain a
DA Form 3822-R (Report of Mental Status Evaluation), dated 10 January 1984. This document shows, in pertinent part, a mental status evaluation found that the applicant's behavior was normal, he was fully alert and oriented, he displayed an unremarkable mood, his thinking was clear, his thought content normal, and his memory good.  The medical official found the applicant mentally responsible; he met the retention requirements of Army Regulation 40-501, Chapter 3; and he was capable of participating in the separation proceedings.  This document also shows that the attending physician assistant and reviewing medical doctor both placed their signatures on the document certifying the accuracy of the applicant’s Report of Mental Status Evaluation.

     g.  The applicant’s separation packet and military service records contain a SF 88 (Report of Medical Examination), dated 10 January 1984, that was completed by the attending physician at the time of the applicant’s medical examination prior to separation from active duty.  Item 73 (Notes) contains the statement, “There has been no significant change in my health since my last physical examination, except:”; the applicant entered, “Dislocated shoulder [and] seizure disorder.”; and the applicant also placed his signature under this statement.  Item 74 (Summary of Defects and Diagnoses) contains the entry
“Pt c/ [patient complains of] several episodes of shoulder dislocation and seizure disorder.”  This document also shows that the attending physician assistant and reviewing medical doctor both placed their signatures on the document certifying the applicant was qualified for separation under the provisions of Army Regulation 635-200, Chapter 13.

     h.  On 23 January 1984, the lieutenant colonel serving as Commander,
530th Supply and Service Battalion (General Support) (Airborne), Fort Bragg, North Carolina, reviewed the proposed separation action and waived the rehabilitative transfer requirement because he determined that rehabilitation would not produce the quality Soldier desired in the Army.  The commander approved discharge of the applicant under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance and directed the applicant be furnished a General Discharge Certificate.   Accordingly, the applicant was discharged on 27 January 1984.

6.  The DD Form 214 (Certificate of Release or Discharge from Active Duty), issued to the applicant on the date of his separation, confirms that the applicant was issued a general discharge under honorable conditions.  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 Program Designator (SPD) Code was "JHJ."  At the time of his discharge, he was credited with completing 0 years, 3 months, and 6 days total prior inactive service and 2 years, 6 months, and 26 days net active service during the period of service under review. 

7.  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.

8.  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.  
.  
9.  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.

10.  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, in effect, that his request for upgrade of his general discharge under honorable conditions to an honorable discharge should be reconsidered because the introduction of the Article 15 proceedings of nonjudicial punishment imposed against him in the COE portion of the ROP of his original request for upgrade of his discharge is inflammatory; he remained quiet with respect to his medical examination and separation processing
(i.e., he invoked his Fifth Amendment rights), which may not be used against him; and the commander’s judgment in the separation process was in error.

2.  The evidence of record shows that the Article 15 proceedings of nonjudicial punishment imposed against the applicant that were introduced in the COE portion of the ROP in the applicant’s original request for upgrade of his discharge accurately document specific incidents that occurred during the applicant’s record of service and during the period of service under review.  In all 4 Article
15 proceedings, after having been afforded the opportunity to consult with counsel, the applicant decided not demand trial by court-martial; he elected to present matters in defense, mitigation and/or extenuation in person to the commander in a closed hearing; and he placed his signature on the DA Forms 2627 certifying this information and his elections.  In addition, in each instance, the applicant was advised by the commander of the punishment imposed; the applicant did not appeal any of the Article 15 proceedings, in effect, acknowledging guilt to the offenses therein; and he again placed his signature on the DA Forms 2627.  In this regard, the applicant provides insufficient evidence to show that the 4 Article 15s are in error, unjust, or that they are inflammatory in the context of the ROP.  Therefore, in the absence of evidence to the contrary, the 4 Article 15s are deemed germane to the character of the applicant’s service during the period of service under review.

3.  The evidence of record shows that, at the time the commander approved the bar to reenlistment against the applicant, the applicant was advised that, if his character and performance warrant elimination from the service, action would be taken to initiate separation proceedings under the provisions of Army Regulation 635-200.  The evidence of record also shows that, after notification of the intended separation action and consultation with legal counsel, the applicant indicated statements on his own behalf were submitted (and attached); however, the applicant’s statement of rights, dated 9 January 1984, fails to identify or list the statement(s) as enclosure(s) to the document and the administrative separation packet does not contain any statement(s) by the applicant.  It is noted that, although the administrative separation packet is absent a statement by the applicant, this does not invalidate the applicant’s signed statement that shows he was advised of the basis for the contemplated action to separate him from the Army for unsatisfactory performance and that he was also advised of the rights available to him.  In this regard, the absence of a statement by the applicant (i.e., invoking his Fifth Amendment rights) does not establish that the separation approving authority used this against the applicant in his decision to issue the applicant a general discharge under honorable conditions.  Thus, the applicant provides insufficient evidence to support his claim that the absence of a statement by him was used against him in the separation action and that the commander’s judgment was in error as to the applicant’s character of service.

4.  The evidence of record shows that the applicant completed a Report of Medical History as part of his medical examination prior to his separation and he authorized “any of the doctors, hospitals, or clinics mentioned above to furnish the Government a complete transcript of [his] medical record for purposes of processing [him] for this employment or service” (emphasis added).”  Thus, the evidence of record refutes the applicant’s claim that he remained quiet regarding his medical examination and/or that his medical records could not be used in the applicant’s separation processing.

5.  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 and correct.

6.  The applicant’s military service records show that he was counseled by members of his chain of command on numerous occasions and he was barred from reenlistment by his commander.  In addition, the evidence of record shows 4 instances of nonjudicial punishment being imposed against the applicant.
Moreover, the evidence of record shows that 3 of the 4 instances of nonjudicial punishment were imposed against the applicant subsequent to the date the applicant’s bar to reenlistment was approved by the battalion commander.  Thus, the applicant’s record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  More specifically, it was not sufficiently meritorious to warrant an honorable discharge.  Therefore, the applicant is not entitled to an honorable discharge.

7.  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.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.


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 to amend the decision of the ABCMR set forth in Docket Number AR20080000847, dated 4 April 2008.




      _______ _   _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)                                         AR20080010444



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ABCMR Record of Proceedings (cont)                                         AR20080010444



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