BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150009896 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____x___ _x_______ _x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150009896 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150009896 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 under honorable conditions be upgraded to an honorable discharge. 2. The applicant states: a. He has been a federal service employee with the Department of Veterans Affairs (VA) for 21 years. He has no felonious record. He was stationed at the Strausburg Base in Germany. He was also stationed in Corlu, Turkey, which was a classified U.S. military site in 1980 through 1981. He spent most of his military time overseas. He has spent most of his life in public service and he is still caring for the men and women that proudly don our military uniforms. b. The leadership at the U.S. military post in Germany from September 1981 to 1982 had gone sour and a friend of his was later killed (1982) and two others for following illegal orders from that leadership. All captains and lieutenants were later removed for various discriminatory misconduct upon investigation. Such misconduct had an impact for his receiving a general discharge under honorable conditions. 3. The applicant provides no additional evidence in support of his application. 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 10 August 1979, he enlisted in the Regular Army for 3 years. He was assigned on temporary duty (unit not specified) in Turkey from 25 November 1979 - 16 May 1980. On 23 May 1980, he was assigned to A Battery, 2nd Battalion, 81st Field Artillery in Germany. 3. On 12 December 1980, he accepted nonjudicial punishment (NJP) for being disrespectful in language toward a non-commissioned officer (NCO), who was then in the execution of his office. 4. On 21 January 1981, he received a letter of reprimand from his unit commander for possession of a pellet pistol found in his possession on 17 January 1981 during a health and welfare inspection. 5. On 1 June 1981, he accepted NJP for wrongfully entering an off limits establishment. 6. On 6 August 1981, he received a letter of reprimand from his unit commander for being disrespectful in deportment towards a warrant officer. He was also warned that further misconduct on his part may result in disciplinary action under the Uniform Code of Military Justice or involuntary separation from the Army. 7. On 20 August 1981, the applicant's unit commander received an assault complaint from a German national against the applicant. His investigation showed the charge could not be supported. However, the commander believed there was some substance to the complaint, but not enough evidence to support an Article 15 or court-martial. 8. On 11 November 1981, he received NJP for being absent without leave from on or about 28 - 31 October 1981. His punishment included placement in the Area Correctional Custody Facility (CCF) for 30 days with 15 days suspended for 4 months. On 12 November 1981, he appealed his NJP and on 20 November 1981, his appeal was denied. 9. On 2 December 1981, his punishment for placement in CCF was mitigated to 22 days extra duty and 22 days restriction. 10. On 5 December 1981, the applicant's commander counseled him concerning his early return from CCF. His early return indicated a bad attitude. CCF was his chance to show that he really wanted to and was capable of reform. However, the commander then concluded the applicant was not able to be rehabilitated. The commander instructed him to improve his conduct and that administrative separation was being considered. 11. On 15 January 1982, the applicant's commander initiated a Bar to Reenlistment Certificate, recommending that the applicant be barred from reenlistment. a. The commander cited the following reasons for the bar to reenlistment: * the applicant received NJP on three occasions * eight instances of failure to pay just debts * formal counseling on 12 occasions from 31 March 1980 - 5 December 1981 b. The commander stated the applicant had serious attitude and motivation problems which prevented him from being a productive Soldier. He lacked self-discipline as shown by his record of financial mismanagement and history of disrespect. He had trouble following orders and resisted authority. The efforts of several section chiefs to help him were unsuccessful. His retention after the first term of service was not in the best interests of the Army. 12. The applicant acknowledged that he received a copy of his commander's recommendation to bar him from further reenlistment and that he was counseled and advised of the basis for this action. The applicant stated that he did desire to submit a statement in his own behalf. He stated: a. In the past he had proved to himself and his peers he could be a productive Soldier. The disrespectfulness that had been exercised by him was nothing more than an emotional tantrum that all Soldiers express from time to time. He had governed himself with blessed behavior but there were situations that brought out the hostility in him. b. Although his commander stated his retention after his first term of service was not in the best interest of the Army, what happens when the U.S. goes into action. He was highly aware his peers and his chain of command were aware that he had the capability and competence to operate crew served weapons and various weapons alike. He did not like what he was going through at the time because it surely manifests the ignorance and intolerance on the part of the Army. c. If he is barred from reenlistment or discharged for unsuitability then it is in the best interest of the Army no matter how much money the Government wasted on his training. Confrontations like this had depressed him. If the lack of administrative action was continued by the chain of command, he would lose motivation in all areas concerning his health and welfare because of his depressed state of mind. 13. On 26 February 1982, his bar to reenlistment was approved. 14. On 26 February 1982, the applicant's commander notified him that he was initiating action to discharge him under the provisions of paragraph 13-4c of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel) for unsuitability based on the applicant's apathetic attitude. 15. The commander's letter advised the applicant of his right to: * have his case considered by a board of officers * appear in person before a board of officers * submit statements in his own behalf * be represented by counsel * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge 16. On 1 March 1982, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action against him under the provisions of chapter 13 of AR 635-200 for unsuitability. The applicant indicated he would submit a statement in his own behalf. The applicant waived: * consideration by a board of officers * a personal appearance * representation by counsel 17. The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. 18. On 3 March 1982, the applicant's commander recommended him for discharge before the expiration of his term of service for unsuitability because of apathy (lack of appropriate interest), defective attitudes, or inability to expend effort constructively. The commander stated the applicant was assigned to the unit as a cannon crewman. He served as a member of the Fire Direction Center and as a howitzer crewman under three section chiefs. He had been counseled informally and formally on numerous occasions without long lasting effect. His misconduct resulted in sentencing to Baumholder CCF from which he was discharged early for resisting rehabilitation. 19. On 8 March 1982, the applicant submitted a statement in rebuttal to his chapter 13 elimination. He stated: a. He hoped to convince a board of officers that he could complete his remaining tour of duty in a successful and honorable manner. He had 5 months or less before the expiration of his term of service. His counselors, supervisors, and peers were convinced that this would be nothing compared to the time that had been completed thus far. He hoped his statement covered some of the inadequate offenses that his chain of command bonded to him. b. There was or remains a counseling statement that cannot be overlooked, assault on a German national was not his way of doing things. The statement was not true. He received NJP for disrespect toward an NCO. He and the NCO were friends at the time and he had no idea the NCO took him seriously until later. He found this to be a result of prejudice and he also learned a lesson. c. His record shows he is a qualified fighting man. He can perform in any wartime environment and defend his country proudly because of training and instincts that had been taught to him and other Soldiers alike. He had also learned to respect and maintain that respect although he fell short in this area at times, but like all men, he was human too. d. Since these incidents occurred in the past he hoped the board of officers could overlook this and let him continue performing his duties honorably. He had a period of 5 months or less (until the end of his enlistment) and he knew he could accomplish his mission honorably. If the chapter 13 discharge was given to him, he could leave with the thought and grace that he had tried and he would continue to do so by not letting this action determine his future simply because it was an unfair situation concerning the ignorance and intolerance on the part of the Army. 20. The appropriate authority waived further rehabilitative and counseling requirements, approved the recommendation for discharge under the provisions of paragraph 13-4c, AR 635-200, and directed that the applicant be furnished a General Discharge Certificate. 21. On 10 June 1982, the applicant was discharged under the provisions of paragraph 13-4c of AR 635-200 by reason of unsuitability for apathy, defective attitude, or inability to expend effort constructively. He had completed 2 years, 8 months, and 14 days of net active service that was characterized as under honorable conditions. He had 3 days of time lost. 22. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: AR 635-200, in effect at the time, set forth the requirements and procedures for administrative discharge of enlisted personnel. a. Paragraph 13-4c provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, or an inability to expend effort constructively. The regulation required that separation action was taken when in the commander's judgment the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. DISCUSSION: 1. The applicant contends the leadership at the U.S. military post in Germany from September 1981 to 1982 had gone sour and a friend of his was later killed as well as two others for following illegal orders from that leadership. He contends that all captains and lieutenants were later removed for various discriminatory misconduct upon investigation. However, he has not provided any substantive evidence to support his contentions. 2. The applicant's post-service employment with the VA was noted. However, good post-service conduct alone is not normally sufficient for upgrading a properly-issued discharge. 3. AR 635-200 states that Soldiers separated for unsuitability would receive a general or honorable discharge based on their entire service record. The applicant received a general discharge under honorable conditions. 4. His commander notified him, on 3 March 1982, that he was initiating action to discharge him under the provisions of paragraph 13-4c of AR 635-200 and informed him of his rights. The applicant acknowledged he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation and its effects. The applicant waived his rights and he acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him. 5. The applicant was properly and equitably discharged in accordance with regulations in effect at the time. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The records contain no indication of procedural or other errors that would tend to jeopardize his rights. 6. A review of the applicant's record of service shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel. The applicant's entire record of service was considered. There is no record or documentary evidence of acts of valor or achievement. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009896 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009896 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2