IN THE CASE OF:	  

		BOARD DATE:	        28 AUGUST 2008

		DOCKET NUMBER:  AR20080008788 


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, that his undesirable discharge be upgraded to a general discharge, and that the narrative reason for his separation be removed based on discriminatory actions. 

2.  The applicant essentially believes that the record is unjust because the offenses which led to his discharge were minor in nature and did not warrant the discharge he received.  He also states, in effect, that he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for being late to work as a cook, but that there were no other offenses, and that the NJP hearings were 10 months apart.  He further states that his overall service was honorable.  He continues by essentially stating that he entered the Army in 1972 at the age of 17 hoping to best serve his country, but upon his arrival at Fort Polk, Louisiana, he found out that racial discrimination was among many violations that he and numerous other Afro-American males endured.  He also states that he suffered severe knee injuries during initial entry training that have affected his sleep and general well-being for over 30 years now.  He further states although he was still suffering from injuries, he remained at Fort Polk with the 551st Military Police Company, where the same commander quickly found reasons to dismiss him.  Additionally, he states that although he complained about pain in his knees and lack of sleep for well over a year, his duty included long hours of standing, scrubbing floors, and carrying heavy pots in the cafeteria, and believes the constant pain, long duty hours, and lack of sleep contributed to a possible nervous breakdown.  He also essentially states that he received consecutive NJP in 1974 which were 
10 months apart for minor offenses involving tardiness, but was not given the opportunity to explain or defend himself, and that he was ordered to sign the NJP without reprieve.  He further states that additional disciplinary action was taken against him that ultimately led to a second possible nervous breakdown.  He continued by stating that he was assigned to assist with the body-bag team for those Soldiers killed in Vietnam, and that for years, those cadavers affected his sleep; when he could sleep.  He further states that after 30 years, he has successfully held down a job, built a career in aircraft maintenance, and raised beautiful children, and that he found out that he has the right to a fair discharge and treatment for his severely damaged knees.  

3.  The applicant provides a self-authored statement, dated 21 May 2008, and the proceedings from his NJP under Article 15 of the UCMJ that he accepted on 13 July 1973, 14 August 1973, and 17 May 1974 in support of this 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.  The applicant's military records show that he enlisted in the Regular Army on 26 October 1972 when he was 18 years and 8 months old, and that he enlisted for training in military occupational specialty (MOS) 91B (Medical Specialist).  He completed basic training, but failed to complete advanced individual training (AIT) in MOS 91B.  He then attended AIT in MOS 76A (Supply Clerk), but also failed to complete this training.  He next attended AIT in MOS 94B (Cook), which he successfully completed, then was reassigned to Fort Polk, Louisiana in May 1973 for what would be his first and only permanent duty assignment.

3.  On 13 July 1973, the applicant accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on 9 July 1973.  His punishment consisted of reduction in rank and pay grade from private first class/E-3 to private/E-2, which was suspended for 60 days but vacated on 

13 August 1973, forfeiture of $50.00 pay per month for 1 month, restriction for 
14 days, and extra duty for 14 days.

4.  On 14 August 1973, the applicant accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on 6 August 1973.  His punishment consisted of forfeiture of $75.00 pay per month for 
1 month and extra duty for 14 days.  

5.  On 17 May 1974, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his place of duty on 11 May 1974 and 17 May 1974.  His punishment consisted of reduction in rank and pay grade from private first class/E-3 to private/E-2 and 2 weeks of extra duty.

6.  A DA Form 2496 (Disposition Form), dated 19 July 1974, essentially shows that the applicant went absent without leave (AWOL) from 4 June 1974 to 
17 June 1974, but that NJP was not initiated due to his pending discharge.

7.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not available for review, the applicant's military records contained a properly constituted DD Form 214.  This document shows that the applicant was discharged on 31 July 1974 under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 13 (Separation for Unsatisfactory Performance).  This document also shows that he was discharged under other than honorable conditions and furnished a DD Form 258A (Undesirable Discharge Certificate).  Item 27 (Remarks) of this document also essentially shows that the narrative reason for his discharge was due to unfitness.  

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  The applicant essentially believes that the record is unjust because the offenses which led to his discharge were minor in nature and did not warrant the discharge he received.  He also stated, in effect, that he accepted NJP under Article 15 of the UCMJ on two occasions for being late to work as a cook, but that there were no other offenses, and that the NJP hearings were 10 months apart.  He further stated that his overall service was honorable.  He continued by essentially stating that he entered the Army in 1972 at the age of 17 hoping to best serve his country, but upon his arrival at Fort Polk, Louisiana, he found out that racial discrimination was among many violations that he and numerous other Afro-American males endured.  He also stated that he suffered severe knee injuries during initial entry training that have affected his sleep and general 
well-being for over 30 years now.  He further stated although he was still suffering from injuries, he remained at Fort Polk with the 551st Military Police Company, where the same commander quickly found reasons to dismiss him.  Additionally, he stated that although he complained about pain in his knees and lack of sleep for well over a year, his duty included long hours of standing, scrubbing floors, and carrying heavy pots in the cafeteria, and believes the constant pain, long duty hours, and lack of sleep contributed to a possible nervous breakdown.  He also essentially stated that he received consecutive NJP in 1974 which were 10 months apart for minor offenses involving tardiness, but was not given the opportunity to explain or defend himself, and that he was ordered to sign the NJP without reprieve.  He further stated that additional disciplinary action was taken against him that ultimately led to a second possible nervous breakdown.  He continued by stating that he was assigned to assist with the body-bag team for those Soldiers killed in Vietnam, and that for years, those cadavers affected his sleep; when he could sleep.  He further stated that after 
30 years, he has successfully held down a job, built a career in aircraft maintenance, and raised beautiful children, and that he found out that he has the right to a fair discharge and treatment for his severely damaged knees. 

10.  A review of the applicant's service medical records did not reveal that he suffered any knee injuries during training.  However, his review did reveal that the applicant was seen by medical personnel on three occasions in March 1973 for joint pain in his knees, and that he requested and received a 7-day temporary profile.  It also revealed that the applicant again sought treatment for pain in his right leg in September 1973, and that he was given an elastic bandage and medication.  His service medical records also essentially show that he possibly had Osgood-Schlatter (O.S.) disease [an overuse injury that occurs in the knee area of growing adolescents which is caused by inflammation of the tendon below the patellar tendon (kneecap) where it attaches to the tibia (shinbone)].  There is also no evidence that he suffered any nervous breakdowns during his military service.

11.  There is no evidence in the applicant's military records which suggests that he was assigned to perform primary or additional duties dealing with handling or processing body bags of Soldiers that were killed in action in Vietnam. 

12.  Army Regulation 635-200, in effect at the time, set forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation provided for separation due to unsatisfactory performance when in the 
commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the Soldier will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  At the time, an undesirable discharge was normally appropriate for a Soldier discharged for misconduct; however, the separation authority could direct that a general discharge be issued if the individual had been awarded a personal decoration or if warranted by the particular circumstances in his or her case. 

13.  Army Regulation 635-200, paragraph 3-7a, also provides, in pertinent part, 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 (emphasis added), 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.

14.  Army Regulation 635-200, paragraph 3-7b, further provides, in pertinent part, that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to a general discharge, and that the narrative reason for his separation should be removed based on discriminatory actions. 

2.  The applicant's contention that his discharge and narrative reason for his separation were based on discriminatory actions was considered, but not found to have any merit.  The applicant provided no evidence to support this contention.

3.  The applicant's contention that he was not given the opportunity to explain or defend himself, and that he was ordered to sign the NJP without reprieve was also considered, but not found to have any merit.  He provided no evidence which shows that he was forced to accept his NJP, and his NJP clearly shows that he elected not to demand trial by court-martial in lieu of accepting NJP.  

4.  The applicant's contention that he suffered severe knee injuries during training is not supported by the evidence of record.  Although his service medical records show that he sought treatment on three occasions in March 1973 and once in September 1973 for knee problems, he was only provided a temporary profile and routine treatment, and the evidence also suggests that he possibly suffered from O.S. disease, which likely existed prior to service and was only a temporary medical issue that would have resolved itself once his growth stopped.

5.  The applicant's contention that he suffered nervous breakdowns during his military service and also assisted in the handling of body bags for Soldiers killed in Vietnam are not corroborated by any evidence in the applicant's military records.

6.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

7.  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.  

8.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not available for review, it is clear that he was discharged under the provisions of Army Regulation 635-200, Chapter 13 for unfitness.  The applicant failed to provide evidence which proves, by a preponderance of the evidence, that his discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

9.  Based on the applicant's record of indiscipline, which included him accepting NJP under Article 15 of the UCMJ on three occasions and going AWOL from 
4 June 1974 to 17 June 1974, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general discharge.  He is also not entitled to have the narrative reason for his separation removed from his DD Form 214.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080008788



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008788



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1