PROCEEDINGS

	IN THE CASE OF:.

	BOARD DATE:  1 August 2000
	DOCKET NUMBER:  AR2000040906

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. Deborah S. Jacobs		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Ms. Karol A. Kennedy		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that he be returned to active duty or be given an honorable discharge.

3.  The applicant states, in effect, that when he was discharged, the proper procedure was not followed.  He did not see the doctor who evaluated him for discharge, did not receive counseling, did not receive transition or ACAP (Army Career and Alumni Program) assistance, and he did not receive any pay.  As character references, he refers to a high school certificate of commendation received from the U.S. Embassy in Nigeria, a “Warrior of the Day” certificate from basic training, and a Catholic Archdiocese for Military Services appointment as an Extraordinary Minister of the Eucharist for the Catholic community in Dexheim, Germany, where he was stationed.

4.  The applicant’s military records show that he enlisted in the Regular Army as an E-2 on 2 July 1997 through the Delayed Entry Program for a 4 year term of service.  He was 32 years of age at enlistment.  Prior to enlisting, the applicant had been a Police Officer in the Nigerian Police Force from 1983 to 1997.  He received a letter of commendation from the U.S. Embassy in Nigeria for defense of the ambassador’s residence against armed burglars where he exchanged shots with the burglars and drove them off.  He was commended for his quick response and bravery.  He has diplomas in Social Development and Administration and in Criminal Justice Administration from the University of Lagos in Nigeria.  He entered the United States on 27 March 1997 in Washington, D.C., as a registered alien.  He lived in Baltimore, Maryland, for one month prior to enlisting in July 1997.  After completing basic training and Advanced Individual Training (AIT) for the MOS 92A, Automated Logistics Specialist, he was assigned to Company D, 123rd Main Support Battalion (MSB) in Baumholder, Germany, on or about 18 March 1998.  He was transferred to Company A, 123rd MSB in Dexheim, Germany, on 20 October 1998.  He was advanced to E-3 on 2 July 1998.

5.  The applicant received the following counseling statements and one Article 15 on 23 March 1999 which the command chose not to complete.  Included below are the applicant’s responses to the counseling.

Company D, 123rd MSB

18 April 1998 – failure to report for duty.  The applicant responded, “On 
this date, I was still inprocessing, but was withdrawn.  I have no 
sponsor, even thought I requested one.  No friends, just pass out from AIT (just arrived in Germany from the United States after completing Advanced Individual Training [AIT] for his MOS 92A).  

I have been inprocessing, nobody showed me where the posting 
board was (for duty assignments).  It was really frustrating, yet when the First Sergeant told me at the bowling center that I have guard duty, I left immediately, changed to my uniform, and took over duty.  I am not guilty as charged.  I performed the duty when the First Sergeant informed me about guard duty." 

28 May 1998 – failure to report on time for morning formation and
afternoon formation.  The applicant responded, “I woke up early.
I asked a fellow soldier if he could give me a ride (to formation), he 
said yes.  I waited, and when it was time to go he said his car was 
filled up.  He advised me to walk myself down.  I had no choice 
than to walk.  I arrived there a minute and a half late.  I was 
counseled and asked to perform corrective punishment, which I 
did.  I am not guilty because anybody can make the mistake I 
made (to trust someone else for a ride and then be stood up).  And 
I have been punished for it.”  Concerning the afternoon formation, 
the applicant responded, “The formation was at a park near the
bowling center.  By 1100, we were asked to go to the mess hall for 
lunch, it is supposed to start by 1130.  When we got there, the time 
for mess hall was changed to 1200 and caused myself and others
to be late for formation.  The rest were forgiven, but I was written up 
and asked to report for corrective training, which I did.  I have 
served the punishment.”

29 May 1998 - failure to report on time for corrective training.  The 
applicant responded, “…SGT H. asked why my sleeves were not 
folded.  I told him I folded it in the morning, like any other person, 
but later the weather got colder, so I rolled it down.  Medically, I 
have a cold weather injury.  He gave me a counseling statement for 
that.  I was asked to report to the orderly room for corrective 
training.  As usual, I obeyed him.  I reported as required (every hour 
on the hour), but each time I reported there was nobody to log me 
in.  Sometimes up to 5 minutes of waiting, and I was instructed not 
to log myself in.  On one occasion, I reported to SGT H., but he did 
nothing about it.  When they surfaced, they will log me in on their 
own arrival time, not the time I reported for sign in.  That was why I 
was counseled again.  I am not guilty because I was not allowed to 
log myself in.  The only option I have was to wait for PV2 to log me 
at his own time.”

1 June 1998 - walking away from a SFC while the SFC was counseling 
him.  The applicant responded, “SFC R. wanted to know why I am 
not happy.  He knows what I was gong through, and asked whether 
or not I want to lodge an EO complaint or IG complaint.  I replied, 
‘Yes.’  He told me that he is the EO representative.  I told him I did 
not want to complain through him because he is the one I am 
complaining against.  At this juncture, he was really angry and 
annoyed, and was yelling at me.  He later asked me if I want to see 
the Chaplain.  I said yes, and he told me to get out of his face and 
to go see the Chaplain.  I left, and as soon as I left, he called me 
back and said, ‘why did you walk away from me?’  I said, ‘because 
you asked me to go.’  That is why he gave me the counseling 
statement.  I am not guilty as charged because he was the one who 
asked me to get out of his face and to go see the Chaplain.”

	27 July 1998 - failure to complete assigned tasks and failure to obey a 
lawful order.  The applicant responded, “SGT H. as my squad 
leader, asked me to perform PMCS (Preventative Maintenance 
Checks and Services on a vehicle) for the first time.  I obeyed him, 
and I was under the vehicle when SGT H. came and asked me to 
come out from under the vehicle.  He asked me why am I under the 
vehicle, and what am I looking for.  I told him to check the source of 
a leak, and determine the class (of repair).  He asked, ‘Are you 
happy?’  I did not reply to him because I felt that is personal and 
has nothing to do with my job.  He then asked me to go to parade 
rest, and I obeyed him.  He asked me again, ‘Are you happy?’  and 
I said, ‘Yes.’  He said he doubted it.  He advised me to tell him the 
truth and that he can help me.  I explained how I have been 
frustrated.  I have long passed my USAREUR (United States Army 
Europe) driving test, both written and oral, and yet cannot be issued 
a drivers license.  None of my co-workers can give me a ride to 
work, and this has been effecting my punctuality and job 
effectiveness.  He gave me rapped attention.  He appeared friendly, 
and at the end of the discussion he told me to go into the office 
and do the PMCS after work.  He asked whether that is OK with 
me, and I said, ‘Yes.’  I thanked him and went into the office.  I was 
in the office sorting out some paperwork and trying to dispatch a 
vehicle for a mission, when SGT H. came in with a counseling 
statement.  Up till now I can not understand why the counseling 
statement.  He was the one who asked me to perform PMCS, 
called me out from under the vehicle, advised me to go inside the 

office, and to perform the PMCS after work, which I did up to 
standard.  This was confirmed by him.”

	2 October 1998 - use of open door policy.

	Company A, 123rd MSB

	9 February 1999 – failing to pass the 2 mile run portion of a 
diagnostic Army Physical Fitness Test.

8 March 1999 - failure to obey a lawful order and failure to be at 
the appointed place of duty.  The applicant responded that he had a 
check problem at the PX.  An $11.00 check he had written had 
been returned from the bank for insufficient funds.  He had paid the PX and bank for all the expenses but his charge account was still 
frozen.  He had earlier gone to the PX to straighten out the matter 
but was told to come back and see the manager between 1400 and 
1700 hours.  He told his NCO, SSG L., about the requirement and 
asked him for help in resolving the problem.  The NCO told the 
applicant to take care of it himself.  So after undergoing a personal 
equipment inspection by SSG L. in the barracks, SSG L. told the 
applicant to put away his gear and go on to work.  After putting 
away his gear, the applicant went to see the PX manager as he 
thought he was supposed to do.  When he returned to work from 
seeing the PX manager, SSG L. counseled him on going to the PX 
instead of going to work.

	11 March 1999 - recommending UCMJ for 8 March 1999 violations.

	23 March 1999 - Article 15 administered for failure to obey a lawful order
		and failure to be at the appointed place of duty.  (The applicant did 
not accept the Article 15 and requested trial by court-martial.  The 
commander took no further action on the Article 15 or the request 
for the court-martial.)

	19 April 1999 - for insubordination to a non-commissioned officer and 
		failing to obey a lawful order.  “On this day and time, we were 
processing parts.  I have processed about 20 parts, keying in D6S, 
that is (the) shipping code, but was told that in one of the parts, 
D6A was keyed.  The error was rectified immediately, and 
I continued my parts processing without a problem.  The next day 

I went to the computer to process parts and my ID was not there 
(password for the computer).  I was denied access.  I went to my 
Squad Leader, SGT D., to ask why my name was not in the 
system.  She has not given me any replay when SSG L. said, 
‘I removed your name, you can call IG, or your congressman.’  
Nothing will make him put it back.  I told him I am not happy with 
the wording ‘call IG, call your congressman, call EO, take their 
numbers.’  Hence the counseling.”

	27 April 1999 – failure to report and disobeying a lawful order.  The 
applicant responded, “On 27 April 1999 I woke up in the morning 
and started sweating.  I felt tired, dizzy, had a terrible headache, and a loss of appetite.  I subsequently reported for sick call at the aid station.  I was evaluated, and the result was H.P. (Heat Prostration) for the first time in my life, extreme dehydration and exhaustion.  The physician admitted me on the bed and administered inter-veinus fluid on me.  (Later) I was asked to go, that the physician was not around.  I was not given quarters.  I can’t even walk back to my room.  When I struggled back, SSG P. and SSG L. came to my room and asked why I am not on duty.  I explained everything to them.  I told them I sent SPC M. and SPC U. to inform them.  They left.  SSG S, SFC D., and LT C. came to my room also to ask how I am feeling, and if I can manage to go to the office.  I told them no.  But later I managed to get myself to work.  SSG L. again gave me two counseling statements.”

6.  On 1 and 16 April 1999, the applicant was given mental health examinations.  The psychiatrist wrote, “(The applicant) complained of feelings of harassment due to cultural differences.  He explained that at his first unit (D Co. 123rd MSB), he kept to himself for the most part due to a combination of age and cultural differences.  As a result, SM reported that he was referred to DMHS-Baumholder because the command thought he might be suicidal (loner, staying behind locked doors).  (The applicant) perceived this and a subsequent referral as an effort to embarrass him.  SM stated that he went to the IG and the LTC G. stepped in to initiate a transfer to A Co. in lieu of chapter action.  SM claimed that at his current unit he was denied the opportunity to attend schooling without taking an English proficiency exam: English is his native tongue.  He also claimed that he was not allowed tuition assistance.  (The applicant) revealed that he initiated a congressional inquiry due to feeling persecuted and complained that he was physically taken to the battalion headquarters to respond to the inquiry.  He was subsequently taken in restraints to Landstuhl Regional Medical Center where he 

was psychiatrically cleared by Dr. C..  (The applicant) expressed concern for his safety and mistrust of command.  The feelings of mistrust may be heightened by (the applicant’s) experiences in his native country, Nigeria.  He related having grown up during a civil war where he lost both parents.  (The applicant) contended the country’s leadership was corrupt as was the military.  These factors are likely influencing this service members’ feelings of persecution and suspiciousness of authority.”  The psychiatrist found the applicant to have some paranoid interpretations but that he was otherwise normal psychologically.

7.  On 28 April 1999, the applicant was notified by letter of his commander’s intent to separate him due to a pattern of misconduct.  On 3 June 1999, the applicant signed an endorsement acknowledging that he had been provided counsel and that he elected to submit a statement on his own behalf.  The Judge Advocate Defense Counsel submitted a letter to the command on the applicant’s behalf which states, “The incidents of misconduct described in (the applicant’s) chapter packet are minor incidents, some of which date back over a year, and to a time when, before he was transferred to Dexheim, he was in Baumholder.  The counseling statements concerning his transfer and the statements he was given when arriving in Dexheim state that he was starting on a new foot.  The fact that the matters that occurred in Baumholder make up much of the basis for this pattern of misconduct chapter at least makes these promises of a second chance somewhat disingenuous.  (The applicant’s) service has not been without incident. However, many of the incidents in the packet may have resulted, at least in part, from language or cultural differences inherent to someone from Nigeria working the U.S. Army.  Please consider that some of the problems may have arisen in this manner.”

8.  He was given a medical examination on 26 April 1999 and found qualified for separation.  The examination report shows the results of lab tests and measurements.  The report also shows clinical evaluation and summary remarks that indicate they were made by a doctor who conducted an actual physical examination of the applicant.

9.  On 4 June 1999, the applicant’s company commander recommended to the chain of command that the applicant be separated from the service under 
AR 635-200, chapter 14-12b, pattern of misconduct.  The battalion commander concurred and recommended a general discharge.  The separation authority, the division support command commander, approved the request and directed a general discharge.  The applicant was so discharged on 19 June 1999 with 
1 year, 11 months, and 18 days active service.

10.  Prior to separation, the applicant was provided ACAP preseparation counseling according to the DA Form 2648, Preseparation Counseling Checklist, that he and his counselor signed on 11 June 1999.  On the form, the applicant entered the comment, “Forced out to leave the Army within six (6) working days after notification of chapter.  Not allowed to see VA.  I was denied medical treatment.  Appointment surgical operation 23rd July 99 (for knee surgery).  Involuntary separation.”

11.  According to US Code Title 10, section 1142, Department of Defense Directive 1332.35, and Department of Defense Instruction 1332.36, concerning preseparation counseling and transition assistance for military personnel, soldiers who are involuntarily separated must be given preseparation counseling and provided certain transition assistance before and after separation.

CONCLUSIONS:

1.  The applicant was given a general under honorable conditions discharge for pattern of misconduct.  An analysis of the misconduct reveals that these offenses, which were of a minor nature, were mostly the result of miscommunication and misunderstanding between the applicant and his supervisors caused by language and cultural differences.  Although, the applicant speaks and reads English, the official language of his native country, Nigeria, the English language usage is different than that used in American English and in the Army.  From his handwritten comments in his military record, his command of the American English language is not of a high order.  Also, the differences between the applicant’s Nigerian cultural orientation and that of the American Army figured often in his difficulty in the Army causing confusion on his part and animosity on the part of his immediate supervisors whom, it appears, misinterpreted the applicant’s actions and responses as disobedience and disrespect.  The psychologist who interviewed the applicant identified language and cultural differences as the source of most of the misconduct situations but it does not appear that the command was willing to accept this and work with the applicant in this regard.  The applicant’s defense counsel also informed the command of this problem in an effort to persuade them to be just and fair in their evaluation of the situation but without success.  The fact that the applicant was a 32-34 year old private and much older than his immediate and intermediate supervisors, would have also contributed to the misunderstandings and miscommunications.  The applicant joined the U.S. Army only three months after immigrating to the United States.  At the time of his separation, he had just over 2 years living in the American and U.S. Army culture.  All of the above should have been considered as mitigating in the type and character of discharge that the applicant received.  From recommendations and endorsements the command gave in the separation 

process, it does not appear that the applicant’s unique circumstances were given proper consideration.  Even though the command followed correct procedure, under the circumstances, the applicant’s general discharge for pattern of misconduct does not appear to be just or fair.  In light of the foregoing, the applicant’s discharge should be changed to an honorable discharge under Secretarial authority.  However, the reentry code should remain a 3.

2.  The record does show that the applicant was given a physical evaluation prior to discharge.  From the comments written by medical authority on the physical evaluation, it appears that the applicant was physically examined by a doctor.  There is no evidence that the applicant did not receive a separation physical evaluation or that he did not see a doctor.

3.  The record does show that the applicant did receive ACAP preseparation counseling as evidenced by the applicant’s and the counselor’s signature on the preseparation counseling form.  However, it is not reasonable to assume that during the applicant’s 5 or 6 day outprocessing and at an overseas location, that he received adequate ACAP transition assistance or benefits in such areas as employment or medical care.  This assumption of inadequate transition assistance is further supported by the fact that the applicant’s duty station at the time was a small isolated base supported by a major installation that is over 
2 hours travel time distant where the ACAP services are located.  The applicant should be provided ACAP transition assistance from a stateside ACAP assistance center beginning immediately according to DoD directives and instructions on such assistance.

4.  The applicant did not specify what error or injustice he experienced in the matter of pay.  Before this Board can consider this issue, the applicant must apply by letter to the Defense Finance and Accounting (DFAS) Claims/Special Actions, DFAS-DE-FYCC, 6760 E. Irvington Place, Denver, CO 80279-7100.  He must provide to that office specific details and evidence as to what pay error exists.  If DFAS is not able to adequately resolve his pay issues, he may reapply to this Board on this point. 

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected for the individual concerned by:

	a.  showing his discharge on 19 June 1999 as an honorable discharge under Secretarial authority and separation code; and

b.  providing him ACAP transition assistance and benefits from a transition assistance center immediately for the maximum amount of time allowable.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__dj___  ___el_____  __kk___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Deborah S. Jacobs__
		        CHAIRPERSON

INDEX

CASE ID	AR2000040906	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000801	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  110	Discharge Documents	
2.		
3.		
4.		
5.		
6.