IN THE CASE OF:	  

		BOARD DATE: 	       3 November 2009

		DOCKET NUMBER:  AR20090009994 


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 general discharge to a fully honorable discharge.

2.  The applicant states that during his service with the 2nd Squadron, 9th Cavalry, he was constantly harassed and threatened by his unit first sergeant (1SG) and suffered many indignities as a result of this treatment.  He adds that he suffered from Post Traumatic Stress Disorder (PTSD) while assigned to this unit.  He adds that he was subsequently enrolled in school despite the constant threats from his unit 1SG.  However, in the end, he could no longer stand the mistreatment and agreed to be discharged. 

3.  The applicant provides an unsigned/undated statement from his former platoon sergeant in support of his request.

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 enlisted in the Regular Army for a period of 3 years on 18 July 1974.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).   The highest rank/grade he attained during his military service was specialist four/E-4.

3.  The applicant’s records also show he was awarded the National Defense Service Medal, the Parachutist Badge, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  The applicant's records reveal a 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 2 May 1975, for being derelict in the performance of his duties in that he negligently failed to stay awake during his tour of duty as a charge of quarters runner on or about 25 April 1975.  His punishment consisted of a forfeiture of $50.00 pay for 1 month (suspended for 6 months), 14 days of restriction, and 14 days of extra duty; 

	b.  on 1 March 1976, for being disrespectful in language toward a superior noncommissioned officer on or about 26 February 1976.  His punishment consisted of 4 days of restriction; and

	c.  on 9 July 1976, for failing to go at the time prescribed to his appointed place of duty on or about 2 July 1976.  His punishment consisted of a reduction to private first class (PFC)/E-3 (suspended for 90 days) and a forfeiture of $90.00 pay for 1 month.

5.  On 8 September 1976, by memorandum, the applicant was notified that his check cashing privileges were suspended indefinitely by reason of failing to redeem a second dishonored check within 7 days of notification. 

6.  On 10 December 1976, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on or about 3 December 1976.  His punishment consisted of a reduction to private (PV2)/E-2 (suspended for 90 days) and 7 days of extra duty.  He appealed his punishment on 10 December 1976; however, on 4 January 1977, the next superior authority denied his appeal.  Furthermore, on 16 December 1976, the suspended punishment of reduction to PVT/E-2 was vacated and the unexecuted portion was ordered executed. 

7.  The applicant’s records reveal multiple instances of counseling by his chain of command regarding various infractions including dishonored checks, failure to clean or take care of his respective area, failure to follow instructions, overdue library books, lack of self-discipline, immaturity as exemplified by his inability to manage his financial responsibilities, a poor attitude, substandard appearance, and failure to respond to counseling. 

8.  On 5 April 1977, the applicant’s immediate commander advised the applicant that he intended to recommend his discharge from the Army under the provisions of paragraph 5-37 (Expeditious Discharge Program, or EDP) of Army Regulation 635-200 (Personnel Separations) by reason of inability to adapt to a military environment and lack of motivation and self-discipline.

9.  On 5 April 1977, the applicant acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and was advised of the basis for the contemplated separation action 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 if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life and elected not to submit a statement in his own behalf.

10.  On 5 April 1977, the applicant’s immediate commander initiated separation action against the applicant under the EDP.  He further recommended a General Discharge Certificate.

11.  On 6 April 1977, the applicant's intermediate commander recommended approval of the discharge with the issuance of a General Discharge Certificate. 

12.  On 7 April 1977, the separation authority approved the applicant's discharge and directed that he receive a General Discharge Certificate.  Accordingly, the applicant was discharged on 15 April 1977.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was discharged under the provisions of paragraph 5-37 of Army Regulation 635-200 with a character of service of under honorable conditions (general).  This form further confirms he completed 2 years, 8 months, and 28 days of creditable active military service.  
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.  There is no indication in the applicant's available medical records that he suffered from PTSD or any other medical problems or that he sought treatment for any medical issues. 

15.  The applicant submitted an undated/unsigned statement authored by his former platoon sergeant, in which he states that during a training exercise in the summer of 1976, an artillery simulator rolled off the back of a canopy and exploded near the applicant's head.   He was then seen by the medics due to ringing.  The platoon sergeant added that during a subsequent night exercise, the applicant thought he was in a real live combat situation and that several weeks after this incident, he started displaying symptoms of fear of flying and having problems following instructions.  His problems were compounded by an aggressive 1SG who thought the Army should get rid of him (the applicant) because he was psychotic. 

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 in the version in effect at the time 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 EDP.  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.

17.  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’s contention that his discharge should be upgraded because he suffered from PTSD during his military service was carefully considered; however, it was found to be without merit.  There is no evidence in the applicant's records and the applicant did not submit any evidence that shows he suffered from PTSD or that his PTSD caused his misconduct.  

2.  The evidence of record shows the applicant displayed a pattern of misconduct that began before the summer of 1976 as evidenced by his multiple instances of nonjudicial punishment and multiple counseling sessions.  Accordingly, his chain of command initiated separation action against him for failure to adapt to a military environment and/or lack of motivation.  The applicant voluntarily consented to his discharge under the EDP. 

3.  The applicant's separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case.  

4.  Based on the applicant's overall service record the applicant's service does not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable 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)                                         AR20090009994





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ABCMR Record of Proceedings (cont)                                         AR20090009994



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