IN THE CASE OF:	  

		BOARD DATE:	        04 DECEMBER 2008

		DOCKET NUMBER:  AR20080012230 


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, that his narrative reason for separation be changed and that the amount of time he served on active duty be corrected on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

2.  The applicant essentially states that his narrative reason for separation is wrong, and that he was in the service longer than stated on his DD Form 214.  He also states that it was not his fault that he left the Army due to an injury that has yet to be taken care of.  He further states that they had to wait for almost 
6 weeks before they could start their basic training because a drill instructor got hurt on the cycle before them.  He continued by essentially stating that if all of his records are found, one will be able to see where he was platoon leader over 
118 Soldiers and an acting E-6 with excellent conduct, but that this whole process started over medical problems.  Additionally, he states that they used radioactive dye in his blood system to find out about a broken ankle he received on active duty.  Further, he states, in effect, that he was promoted from private/
E-1 to private/E-2 in just 18 days, and was a very proud Soldier.       

3.  The applicant provides his DD Form 214 and an undated self-authored letter in support of this application.

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 that he enlisted in the Regular Army on 7 April 1981.  He entered one-station unit training on 13 April 1981.  On 14 April 1981, he was given his initial performance counseling, and a DA Form 4956 (General Counseling Form) essentially shows that the applicant had been divorced for about 6 months and was paying his wife $350.00 a month in child support, and that he might have to go to legal assistance for help in this matter.  This document also shows that the applicant understood the absent without leave (AWOL) standard operating procedures.  This document further shows that the applicant had no other problems and seemed to be motivated, and that it was explained to him the training he would receive, and that if he had any more problems to see his cadre.  This document also shows that follow-up on his child support issue was done on 25 April 1981 and that the applicant saw a lawyer and knew what to do about his child support.  Additionally, this document showed that the applicant was doing a good job as Platoon Guide [an informal trainee position in which one of the stronger trainees is designated to assist drill sergeants in putting out information and helping with accountability].  

3.  A separate DA Form 4856 essentially shows that weekly counseling was conducted with the applicant on 10 May 1981 and 21 May 1981.  On 10 May 1981, the applicant essentially stated that he had no personal problems at that time except the fact that he was put on profile, and that a doctor was talking about putting him out of the Army.  It also shows that the applicant stated that he wanted very badly to stay in the Army, and was giving 100 percent as Platoon Guide.  On 21 May 1981, this form documented that the applicant stated that he had no problems, and that his profile had been lifted and he could again march with his platoon.  It also shows that the applicant was doing a fine job as Platoon Guide.

4.  On 31 May 1981, the applicant went AWOL and remained in this status until he returned to military control on 4 June 1981.



5.  On 4 June 1981, the applicant's company commander counseled him on the reason he went AWOL, and indicated that the applicant stated that he wished to return with his wife and children, and that he also stated that his mother had been married 15 times and continuously attempted suicide, and that these were the reasons he went AWOL.  The applicant's company commander also indicated that the applicant said he needed time to solve his problems and regroup his marriage, and that his mother was not capable of caring for his 
10-year old step-sister.  He further indicated that the applicant stated that his step-sister was roaming the streets and going berserk, and that he was not planning to come back, and was planning to go to New Orleans and work on the drills for several months until he had sufficient money to go to Oklahoma.  Additionally, he stated that the applicant seemed to be very depressed and unsure of his situation, and that he told the applicant that sooner or later he needed to make a decision, but that it did not seem that the applicant was able to cope with the problems of his divorce.  This document also indicated the applicant was pending a medical board; however, there is no evidence in the available records to support this statement such as a DA Form 3349 (Physical Profile) or other documentation showing that disability processing was initiated on the applicant. 

6.  In a letter, dated 12 June 1981, the applicant's brigade chaplain indicated that he interviewed him on that date, and that the applicant had two half-sisters and that his natural father divorced his mother when he was two years old, but that his mother has been married 14 times by actual count and was unmarried at the time.  He also stated that the applicant's mother had tuberculosis, an alcohol problem, and also mental problems with at least seven suicide attempts.  He also essentially detailed the difficult upbringing the applicant had, and that he entered the Army "in order to get away from everything."  He also stated that the applicant had been receiving communications from his mother who appeared to be threatening suicide, and that the applicant's attitude went from excellent to rotten, and that he eventually went AWOL to "straighten out [his] mother and get [his] family together."  This chaplain strongly recommended that the applicant be discharged, and that the applicant did not come from a stable background, and that it was starting to show in both his thinking process and actions.

7.  On 16 June 1981, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority from his unit on or about 31 May 1981 and remaining so absent until on or about 4 June 1981.  His punishment consisted of forfeiture of $116.00, 14 days of extra duty, and 14 days of restriction.  


8.  Also on 16 June 1981, the applicant’s commanding officer informed him that he intended to initiate action to effect his discharge from the United States Army under the provisions of paragraph 13-4c, Army Regulation 635-200 (Enlisted Personnel) for unsuitability.  He was also advised of his rights, which included consulting with counsel, presenting his case before a board of officers, submitting statements in his own behalf, and representation by appointed military counsel, military counsel of his choice provided such counsel was reasonably available, or civilian counsel at his own expense.  

9.  On 17 June 1981, a mental status evaluation was conducted on the applicant, and he was essentially cleared for any administrative action deemed appropriate by his command.  

10.  On or about 18 June 1981, the applicant acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for unsuitability under the provisions of Chapter 13, Army Regulation 635-200, and its effects; of the rights available to him, and the effect of any action taken by him in waiving his rights.  He waived consideration of his case and personal appearance before a board of officers, and elected not to submit statements in his own behalf.  He also waived counsel.  He also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  

11.  On 2 July 1981, the applicant went AWOL for a second time and never returned.  

12.  On 22 July 1981, the applicant's battalion commander recommended approval of the applicant's discharge and requested that he be discharged 
in absentia.

13.  On 30 July 1981, the proper authority approved the applicant’s elimination under the provisions of Chapter 13, Army Regulation 635-200, and directed that he be issued a DD Form 257A (General Discharge Certificate).  On 13 August 1981, the applicant was discharged accordingly.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade to his narrative reason for separation within its 
15-year statute of limitations.



15.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy, and homosexuality.  The regulation requires that separation action will be taken when, in the commander’s judgment, the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for separation should be changed and that the amount of time he served on active duty should be corrected on his DD Form 214.

2.  The applicant's contention that he left the Army due to an injury was considered, but not found to have any merit.  The evidence of record shows that he was issued a profile, but that it was subsequently lifted and he was able to resume marching with his platoon.  Additionally, although the counseling statement by his commander on 4 June 1981 indicated that the applicant was pending a medical board, there is no evidence in the available records to support this statement such as a DA Form 3349 or other documentation showing that disability processing was initiated on the applicant. 

3.  The applicant's contention that they had to wait for almost 6 weeks before they could start their basic training was also considered, but not found to have any merit.  The evidence of record shows that he entered one-station unit training 6 days after his enlistment, and that he was receiving regular counseling while in training afterwards.

4.  The applicant's contention that he was a platoon leader over 118 Soldiers and was an acting E-6 was also considered, but found not to have any merit.  The evidence of record clearly shows that he was serving as a Platoon Guide, which is an informal trainee position in which one of the stronger trainees is designated to assist drill sergeant in putting out information and helping with accountability.  The fact that he most likely wore an arm brassard with staff sergeant insignia while serving as a Platoon Guide is not the same as being an acting E-6.

5.  The applicant's contention that radioactive dye was used in his blood system to find out about a broken ankle he received on active duty was also considered. However, the applicant's military records are void of any medical documents, so this information could not be confirmed with the evidence in his military records.  However, even if this was the case, it would not be justification for him to go AWOL on two occasions.

6.  The applicant's contention that he was promoted from private/E-1 to private/
E-2 is not corroborated by the evidence of record.  There is no evidence in his military records which shows that he was ever promoted.

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.

8.  The applicant's contention that his narrative reason for separation is incorrect was considered, but not found to have any merit.  The applicant's narrative reason for separation was based on his discharge under the provisions of Chapter 13, Army Regulation 635-200 due to unsuitability due to apathy, defective attitude, or inability to expend effort constructively.  

9.  There is no evidence in the applicant military records, and the applicant failed to provide any evidence which shows that he served in the Army longer than what is reflected on his DD Form 214.  In view of the foregoing, there is no basis for changing the amount of service he performed shown on his DD Form 214.

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.




      _______ _ 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)                                         AR20080012230



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012230



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1