RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20070018097 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 that his general discharge (GD) be upgraded to honorable.

2.  The applicant states that he was denied due process, denied medical care upon request, was a victim of racism, and that his superiors failed to protect him from a fellow Soldier and conspired against him.

3.  The applicant submits a statement wherein he describes the incident that he believes led to his discharge.  He states that he requested to go to sick call because he had been experiencing uncontrollable fits when provoked.  When told he could not go to sick call he reports he told his supervisor that he would not be responsible or liable for any incidents that might occur.  He had a meeting that ran late causing the food service personnel to have to scramble to get lunch ready.  During this time a sergeant from another unit started yelling at the applicant demanding to know why the service line was not fully stocked.  A specialist also started yelling at him and using profanity towards him.  The applicant states that he yelled back and threatened the sergeant while slashing at him with the eight inch knife he was using to cut a cake barely missing him.  He then picked up a table and threw it to the floor.  He was directed to go into the mess hall sergeant’s office and the mess sergeant tried to provoke him into a fight.  The applicant replied that he would not hit the mess sergeant with his uniform on.  The applicant states he was told to report to the unit commander who notified him that he was unfit and would be discharged.  The applicant states he requested a change of duty assignment and was denied.  He believes that he was denied the help he needed.  He also believes that his right to seek medical attention was denied and that his right to a fair trial under the Uniform Code of Military Justice (UCMJ) was denied. 

4.  The applicant provides copies of one page from his service medical record, the second page of a Standard Form 88 (Report of Examination), a letter of character from a rector of his church, a letter of character from the President of the Senate of American Samoa, a letter from the Speaker 29th Legislature of American Samoa, and a letter from the Samoan Member of the United States Congress.

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 entered active duty on 23 August 1983 and served as a cook.

3.  The applicant received nonjudicial punishment (NJP) as follows:

	a.  on 11 April 1984, for being absent without leave (AWOL);

	b.  on 17 May 1984, for failure to go to his place of duty; and 

	c.  on 7 August 1984, for being AWOL. 

4.  On 14 August 1984, the applicant's unit commander initiated separation actions under the provisions of Army Regulation 635-200, Chapter 13 for unsatisfactory performance.  The commander indicated that the applicant had received NJP on three occasions including being absent without leave on two occasions.  The commander also listed seven negative counseling statements given in less than a month's period of time for fighting, being late for duty, failure to report for duty, and on his manner of duty performance.

5.  On 14 August 1984, his unit commander also requested that the requirement for a rehabilitation transfer be waived.  The unit commander stated that the applicant had been a constant burden on the chain of command and showed no desire to improve.

6.  After consulting with counsel and being advised of his rights and options, the applicant acknowledged the proposed separation action under the provisions of Army Regulation 635-200, chapter 13.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive an under other than honorable conditions (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received a general discharge.  The applicant waived his rights to a Board of Officers and to make a personnel statement.
7.  On 16 August 1984, the discharge authority approved the separation action, waived the rehabilitation requirements, and directed the applicant receive a GD.

8.  The applicant was discharged on 6 September 1984 for unsatisfactory performance with a GD.  He had 1 year and 7 days of creditable service with 7 days of lost time.

9.  On 28 January 1993, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for separation.

10.  The Standard Form 600 (Chronological Record of Medical Care) provided by the applicant shows he was seen at the Mental Health Clinic on 16 April 1984. The applicant has not provided nor does the record contain any additonal information or documentation related to his mental health.

11.  The applicant's rector indicates he is the applicant's spiritual guide and vouches for the applicant's good character.  

12.  The letters of character from the President of the Senate of American Samoa and the Speaker of the 29th Legislature of American Samoa both describe the applicant as enthusiastic, dependable and personable person.  He is a credit to his family and village.

13.  The Samoan Member of the United States Congress recounts the incident as described by the applicant and offers his support for the applicant.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 

15.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 91, assault on a noncommissioned officer; Article 128, assault with dangerous weapon or means likely to produce grievous bodily harm or death; and Article 117, communicating a threat.

DISCUSSION AND CONCLUSIONS:

1.  The record contains no indication that supports the applicant's contention that he was the victim of racism or that he was denied due process.  

2.  There is nothing in the applicant’s record and he has provided nothing to show that he was denied medical treatment or that he was suffering from a mental or emotional defect so severe that he could not tell right from wrong and adhere to the right.  The applicant admits that he threatened and attempted to assault a noncommissioned officer with a knife. 

3.  The applicant’s conduct was inconsistent with the Army’s standards for acceptable personal conduct and his overall quality of service was not so meritorious as to warrant a fully honorable discharge.  

4.  The evidence shows the applicant consulted with counsel and he was advised of his rights.  He acknowledged that he understood his rights and there is no evidence that he indicated he believed he was being discriminated against or denied due process.  In the absence of evidence to the contrary, it is presumed that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the applicant’s discharge is commensurate with his overall record.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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
ABCMR Record of Proceedings (cont)                                         AR20070018097



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508