IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100009350 


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, removal of seven letters from his official military personnel file (OMPF).

2.  The applicant states the above letters are false.  The commander forged his signature.  The letters defame his character. 

3.  The applicant provides copies of the seven letters of counseling with the following dates:  two letters on 20 August 1975, one on 1 September 1975, and one on 23, 24, 28, and 29 October 1975.

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.  With prior enlisted service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 28 July 1975.  He entered basic training at Fort Polk, LA.  He received two written counseling statements on 20 August 1975.  The individual counseling the applicant stated the applicant was distracted, his duty performance was substandard, and he lacked the stamina and aggressiveness required to be an infantryman.  These counseling statements contain a signature that appears to be the applicant's along with his social security number.

3.  A review of the applicant's Military Personnel Records Jacket (MPRJ) shows the following counseling letters that were authenticated by appropriate military authorities and the applicant as follows:

   a.  on 1 September 1975, he was failing to adjust to military life, he could not get along with others, he was not pulling his fair share of duties, and he was notified that he could be separated if he did not show improvement;
   
   b.  on 23 October 1975, he was immature, showed a lack of self-confidence, and he was not able to perform the basic skills of Soldiering;
   
   c.  on 24 October 1975, he was not pulling his fair share of work details, he was not harmoniously living with his fellow trainees, and he was notified him that he could be discharged if his performance did not improve;
   
   d.  on 28 October 1975, continuously going on sick call was hindering his ability to attend required training and hindering his ability to complete the required training within the prescribed time limitations; and
   
   e.  on 29 October 1975, he did not work well with others, his appearance was substandard, his responsiveness to military orders was slow, and he could face elimination from the Army.
   
4.  On 30 October 1975, the applicant's company commander notified him that he was initiating action to discharge him from the Army because he was unable to cope with the military training environment.  His commander said he was distracted, ineffective at basic Soldiering, irresponsible, lacked self-confidence, and that his overall duty performance was substandard.  After nearly 4 months on active duty, the applicant had not completed the third week of training due to repeated medical absences and physical profile limitations. 

5.  The applicant was advised he would receive an Honorable Discharge.  He was informed he had not completed the requisite active duty time for Veterans 


and other benefits normally associated with the completion of honorable active duty service such as educational benefits under the GI Bill of Rights.  He was also informed he could not reenlist in the Armed Forces within 2 years from his date of discharge.

6.  The applicant acknowledged receiving his commander's elimination notification letter on 30 October 1975.  He indicated he did not desire to have counsel assist him in explaining the discharge procedures.  He did not request a separation physical examination.  He did not submit statements on his own behalf as a rebuttal to the elimination proceedings.  He further acknowledged that he understood that due to not completing the required active duty service period, Veterans Administration and other benefits normally associated with the completion of honorable active duty service would be affected.  The applicant signed this statement indicating he understood its content. 

7.  On 3 November 1975, the appropriate separation authority approved the applicant's discharge and directed the issuance of an Honorable Discharge Certificate.

8.  Accordingly, the applicant was honorably discharged under the Trainee Discharge Program on 6 November 1975.  He was issued a DD Form 214 (Report of Separation from Active Duty) confirming he served a total of 3 months and 9 days of active service with 7 months and 12 days of inactive service.    

9.  As evidence to support his application the applicant provided copies of the counseling letters identified in paragraph 3 of these proceedings.  In comparing the applicant's signature on these counseling forms, his elimination acknowledgement letter, and his DD Form 214 it would appear the same individual signed each document.  

10.  Army Regulation 640-10 (Individual Military Personnel Records) in effect at the time, prescribes the policies governing the OMPF, the MPRJ, the Career Management Individual File, and Army Personnel Qualification Records.  This regulation states that when a person joins an Army component, the commander will initiate an MPRJ for each person entering the service.  The general guidelines are that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  Table 3-1 of this regulation pertains to the composition of the MPRJ, 


which states that for case files of approved separations, file administrative discharge actions and all supporting documents that set forth the details and form a basis for the separation.

11.  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.  The 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 company commander falsified his signature on multiple counseling letters filed in his MPRJ.  However, other than his own assertions, he provides no evidence that the signatures on the letters are forgeries.

2.  These letters are a part of his separation packet.  They helped form the basis for his discharge.  Regulatory requirements direct that these letters be filed with the separation document as supporting evidence affecting his discharge process. 

3.  In view of the foregoing, there is insufficient basis to grant the applicant's request to remove the seven counseling letters from his MPRJ.

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)                                         AR20100009350



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ABCMR Record of Proceedings (cont)                                         AR20100009350



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