RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  14 February 2008
	DOCKET NUMBER:  AR20070014375 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce Wright

Analyst

The following members, a quorum, were present:


Mr. John Meixell

Chairperson

Ms. Carmen Duncan

Member

Ms. Rea Nuppenau

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general discharge, under honorable conditions, be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he received a general discharge because of personal reasons such as his being black.  He states he had a commander who had race problems and should not have been a leader.  He believes that under different leadership he would have gotten an honorable discharge.  His commander told him that he would not get an honorable discharge.

3.  The applicant provides no additional documentation in support of his request.

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 record shows he enlisted in the Regular Army on 2 February 1978.  He successfully completed basic combat training at Fort Jackson, South Carolina, and advanced individual training at Fort Lee, Virginia.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 76V, Material Storage and Handling Specialist.  He was promoted to pay grade E-3 on 2 May 1979.

3.  Between 6 October 1980 to 19 December 1980, he received nonjudicial punishment (NJP) on two occasions under Article 15, of the UCMJ (Uniform Code of Military Justice), for failure to stop at a stop sign, for wrongfully possessing marijuana on two occasions, and for larceny of a motor vehicle license plate.  His punishments consisted of a reduction to pay grade E-1, a forfeiture of pay, and extra duty. 


4.  On 25 November 1980, the applicant's commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, chapter 13, for unsuitability.  He was notified of his rights to counsel, to present evidence, and to appear before a board of officers.  On that same day, he acknowledged receipt of the notification.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

5.  On 25 November 1980, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 13, for unsuitability.  The commander based his reasons on the applicant's apathetic attitude towards his duties, failure to progress in his MOS, and his lack of initiative to properly accomplish any task in his MOS.  

6.  On 16 December 1980, the separation authority approved the recommendation for the applicant's discharge and directed that he be furnished a general discharge.  The applicant was discharged on 24 December 1980, in the pay grade of E-1.  He had completed a total of 2 years, 7 months, and 23 days of creditable service. 

7.  Army Regulation 635-200, chapter 13, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness or unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, apathy (lack of appropriate interest), defective attitudes, inability to expend effort constructively, alcoholism, and homosexuality.  

8.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

9.  The applicant contends that he was discharged due to his commander's race problems and the fact he was black.  He provided no evidence to support this contention.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's contention he was separated under the provisions of Army Regulation 635-200, chapter 13, for unsuitability and issued a general discharge.  The evidence shows the applicant's discharge was based on his apathetic attitude towards his duties, his failure to progress in his MOS, and a lack of initiative to properly accomplish any task in his MOS.  

2.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the characterization of his discharge.

3.  Careful consideration has been given to the applicant's claim, in effect, that he was discriminated against because of his race and that under different leadership he would have received a honorable discharge.  However, there is no evidence, and he has provided none, to show that racial discrimination or prejudice played an integral part in the decision to discharge him or in the type of discharge that he received.

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general, under honorable conditions.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__J_____  ___CD___  ____R __  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.





____John T. Meixell______
          CHAIRPERSON




INDEX

CASE ID
AR20070014375
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080214
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19801224
DISCHARGE AUTHORITY
AR 635-200, chapter 13, para 13-4c
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.