IN THE CASE OF:	  

		BOARD DATE:	   5 September 2013

		DOCKET NUMBER:  AR20130002227 


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, an upgrade of his general under honorable conditions discharge to an honorable discharge.  He also requests, in effect, a change of the narrative reason for separation and related separation program designator (SPD) code shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states the narrative reason for his separation was “Failure to maintain acceptable standards for retention (EDP) [Expeditious Discharge Program].”  He was under the presumption that he had been given an honorable discharge.  His separation code seems to be keeping him from being able to use his eligibility for benefits authorized by Chapter 37, Title 38, U.S. Code (veterans' housing loan benefits).  He was told that he needed to upgrade his DD Form 214; however, his records were destroyed in a fire.

3.  The applicant provides his DD Form 214 and a Standard Form 180 (Request Pertaining to Military Records).

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.  On 31 July 1980, the applicant enlisted in the Regular Army for a 3-year term of service.  He successfully completed training and he was awarded military occupational specialty 64C (Motor Transport Operator).  

3.  An Army Europe (AE) Form 2122 (Unit Commanders Report for Psychiatric Evaluation), dated 30 November 1981, shows the applicant’s commander requested a psychiatric evaluation.  The commander stated the applicant approached the first sergeant (1SG) and informed him that he was having problems adjusting to the military way of life and that he was having difficulty remembering what he had to do.  He was scared of his noncommissioned officers because he could not get his job done fast enough.  He was also having problems finding a sister from whom he had been separated when they were infants.  The commander stated the applicant would get excited and start to cry and could not seem to remember what he was told to do.  The commander further stated if the applicant continued to be less aggressive toward his duties and responsibilities he should be discharged from the military.

4.  A memorandum, subject:  Psychiatric Evaluation on [Applicant], dated 17 February 1982, signed by the Clinical Director, Human Resources Center, Schweinfurt (Germany) Military Community, shows the applicant underwent a psychiatric evaluation.  During the interview the applicant stated there were times when someone was talking to him that he was aware that they were talking to him, but he did not comprehend what was being said.  The applicant stated there were also times when a constant sound such as a car idling or an airplane droning would have a hypnotic effect on him.  He stated he had experienced outbursts of crying in response to mild criticism and would pace back and forth repeatedly at inappropriate times.

5.  The memorandum further stated the applicant appeared to have difficulty following the conversation with the counselor.  He had to be asked the same questions several times before he formulated a response.  He spoke haltingly and appeared dazed.  He evidenced serious personality problems, and it was felt that long-term psychotherapy would benefit him.  The memorandum stated the applicant had no psychiatric disorder which would warrant discharge through medical channels.  He was cleared for administrative action deemed appropriate by command, to include administrative separation.

6.  An AE Form 113-10-R (Notification of Pending EDP Discharge and Acknowledgment), dated 12 March 1982, shows the applicant's commander informed him he was initiating action to discharge him from the U.S. Army under the provisions of paragraph 5-31 (EDP), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), and that he was recommending the applicant be furnished an Honorable Discharge Certificate. 

7.  The reason for his proposed action was that the applicant exhibited severe behavior problems within the battery.  He was forgetful; he often received instructions and then completed the wrong missions--not willfully, but because his mind jumbled the ideas.  He felt persecuted and mumbled to himself.  An Army psychiatrist stated the applicant had severe personality disorders that were beyond the Army’s resources to properly treat.  He was in no way prepared to adapt to Army life and had not done so.

8.  On 12 March 1982, the applicant signed a statement acknowledging notification of the action to discharge him under the EDP.  He voluntarily consented to the discharge and elected not to submit statements in his behalf.  He acknowledged he understood that if he were to be issued a general discharge under honorable conditions he could expect to encounter substantial prejudice in civilian life.

9.  On 12 October 1982, the appropriate authority approved the recommendation to administratively separate the applicant and directed he receive a General Discharge Certificate under the provisions of Army Regulation 635-200.  On 8 June 1982, he was discharged after completing 1 year, 10 months, and 8 days of creditable active service.  

10.  His DD Form 214 shows in:

* item 21 (Signature of Member Being Separated) – the applicant's signature
* item 24 (Character of Service) – "Under Honorable Conditions"
* item 25 (Separation Authority) – "PARA 5-31 AR 635-200"
* item 26 (Separation Code) – "JGH" 
* item 28 (Narrative and Reason for Separation) – "Failure to Maintain Acceptable Standards for Retention (EDP)" 

11.  There is no evidence in the applicant's service records that shows he had disciplinary action taken against him.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31 of the version in effect at the time provided that members who completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of a poor attitude, a lack of motivation, a lack of self-discipline, an inability to adapt socially or emotionally or failure to demonstrate promotion potential could be discharged.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before a board or punitive action became necessary.

13.  Army Regulation 635-200 provided no member would be awarded a character of service of under honorable conditions under paragraph 5-31 unless given the opportunity to consult with appointed counsel.  Paragraph 5-31 further provided no member would be given a character of service of under honorable conditions by the separation authority unless the commander initiating the recommendation for separation recommended it.  In cases in which the separation authority disagreed with the recommendation for an honorable character of service, the case was to be returned to the initiating commander with comment to that effect.  The initiating commander could either initiate new proceedings under this paragraph or take other appropriate action. 

14.  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.

15.  Army Regulation 635-5-1 (Separation Program Designators (SPD)) provides the SPD code to be entered in item 26 of the DD Form 214.  The version in effect at the time stated SPD code "JGH" would be entered on the DD Form 214 for Soldiers separated under the EDP by reason of failure to maintain acceptable standards for retention.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was under the presumption he was issued an honorable discharge.  Evidence of record shows the applicant's company commander recommended that he be issued an honorable discharge; however, the approving authority directed that he be issued a general under honorable conditions discharge.  In accordance with Army Regulation 635-200, paragraph 5-31, in cases in which the separation authority disagrees with the recommendation for an honorable character of service, the case will be returned to the initiating commander with comment to that effect.  The initiating commander may either initiate new proceedings under this paragraph or take other appropriate action

2.  There is no evidence indicating the separation authority returned the case to the applicant's commander or that the applicant's commander initiated new proceedings.  It appears the separation authority may have erred by directing the applicant be issued a general under honorable conditions discharge instead of an honorable discharge.  Therefore, it would serve the interest of equity and fairness to correct the applicant's records to show he was issued an honorable discharge.

3.  The proposed change in the characterization of his service does not affect the underlying reason and authority for his discharge.  The available evidence shows the reason and authority for his discharge were proper and equitable and are properly documented by the SPD code and narrative reason for separation entered on his DD Form 214.  In the absence of evidence showing an error in the SPD code or narrative reason for separation, there is no basis for changing these items on his DD Form 214.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X____  ___X___  ___X_____ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  issuing the applicant an Honorable Discharge Certificate, dated 8 June 1982, in lieu of the General Discharge Certificate of the same date he now holds, and

	b.  issuing the applicant a new DD Form 214 reflecting the above corrections.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the narrative reason for separation and SPD code shown on his DD Form 214.



      __________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)                                         AR20130002227





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ABCMR Record of Proceedings (cont)                                         AR20130002227



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