BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100011846 


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 his general discharge be upgraded to an honorable discharge.

2.  The applicant states his general discharge was unwarranted.  He explains his wife refused to join him in Germany.  As a result he fell into a deep depression and began drinking heavily.  The Army did not provide him with counseling or psychiatric care and his conduct became occasionally aberrant.  The applicant claims that if he had received proper psychiatric treatment his behavior would not have deteriorated, and if he had been counseled on the ramifications of a general discharge, he would not have accepted it.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 17 January 1978, was awarded the military occupational specialty of power generator wheel vehicle mechanic, was promoted to pay grade E-3, and was assigned to a unit in Germany.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on three occasions for being disrespectful in language towards a noncommissioned officer; falsely altering a certain check from reading $136.00 to $486.00 with the intent to defraud; and unlawfully receiving one receiver and one turntable, a value of about $147.00, the property of another Soldier, which he knew had been stolen.

4.  On 5 September 1979, the applicant's commander notified him of his intent to recommend his discharge under the Expeditious Discharge Program (EDP) and of his rights in conjunction with that recommendation.  In this notification his commander informed him that he had the right to decline the discharge, but if he did he could be subjected to disciplinary or administrative separation procedures under other provisions of laws or regulations.  The applicant waived his right to legal counsel and consented to the discharge.

5.  On 7 September 1979 the applicant's commander forwarded a recommendation to discharge the applicant under the EDP.  In his letter the commander stated that the applicant had demonstrated the complete inability to adapt socially and emotionally to the Army.  He had exhibited anti-social behavior since his assignment and was completely untrustworthy.  In January 1979, several small articles belonging to one of his roommates were found in his wall locker.  During the search that followed, two pieces of stolen stereo equipment were found.  The equipment belonged to two unit members who had reported the missing equipment in the fall of 1978.

6.  The applicant's commander continued that when the U.S. Army Criminal Investigation Command and Military Police investigated, the applicant lied on numerous occasions and attempted to cover up the truth.  At that time the applicant was referred to the Mental Hygiene Clinic for an evaluation.  The applicant was determined to be mentally stable and just concerned over the two larceny charges and his family.  However, the applicant failed to send home money to his wife on so many occasions that the welfare department in his hometown had written often complaining about this situation.

7.  The applicant's commander added that the applicant had been implicated in at least two other minor larcenies in the barracks in which the applicant admitted to stealing the items and returned them.

8.  On 11 September 1979, the applicant was given a separation physical examination.  In that examination the applicant wrote "I am in good health.  I feel great."  However, he listed having had a number of medical problems, including attempted suicide and depression or excessive worry.

9.  On 4 October 1979, the applicant was given a general discharge under the EDP.  He had 1 year, 8 months, and 17 days of active duty.

10.  Army Regulation 635-200 (Enlisted Separations) provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 5, as then in effect, provided, in pertinent part, for the EDP.  This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated.  Such personnel were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not submitted any evidence to show that his wife refused to join him in Germany.  He was a junior enlisted Soldier and it would have been financially difficult for him to bring his wife to Germany to join him.

2.  It is noted that the applicant routinely failed to send his wife any money to assist in her support while he was in Germany.

3.  There is no indication that the applicant was drinking alcoholic beverages while on active duty or, therefore, any indication that drinking alcoholic beverages caused him to do things he would not have otherwise done.

4.  The majority of the applicant's misconduct was stealing from his fellow Soldiers.

5.  While the applicant stated in his separation physical examination that he had attempted suicide and suffered from depression or excessive worry, he was not determined to be medically disqualified.  
6.  The applicant waived legal counsel who would have explained the ramifications of a general discharge, and he consented to being discharged under the EDP.

7.  In view 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 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)                                         AR20100011846





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ABCMR Record of Proceedings (cont)                                         AR20100011846



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