IN THE CASE OF:	  

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080009962 


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, reconsideration of his earlier petition that his general discharge (GD), under honorable conditions be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he was discharged from the military for not being a good Soldier.  He claims that his commander developed a personal conflict against him from the first day he came to the unit, which resulted in his always receiving extra duty.  He states he felt he was being discriminated against, which in turn impaired his ability to serve.  He claims he was a good Soldier with the exception of the Article 15's he received, and that it was unfair for him to be given GD for only minor offenses.  He further states he has been labeled an undesirable Soldier and he has a GD for the rest of his life which is too much to pay for the minor offenses he committed.

3.  The applicant provides a Self-Authored Statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC97-05298, on 
26 August 1998.

2.  During its original review of the applicant's case, the Board concluded the applicant's discharge processing was accomplished in accordance with the applicable regulations and that his discharge was both proper and equitable. 

3.  The applicant provides a self-authored statement claiming he was discriminated against as new argument.  

4.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 28 March 1974, and was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

5.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows the highest rank he attained while serving on active duty was private/E-2 (PV2).  Item 41 (Awards and Decorations) shows that during his active duty tenure, he earned the National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

6.  On 19 July 1974, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order on or about 12 July 1974.  His punishment for this offense was a forfeiture of $70.00 and 14 days of extra duty and restriction.

7.  On 8 November 1974, the applicant accepted NJP for failure to go to his appointed place of duty at the prescribed time; being disrespectful towards his superior commissioned officer by failing to answer questions directed to him and for turning and leaving while being addressed.  His punishment for this offense was a forfeiture of $50.00 per month for 2 months, and 30 days of extra duty and restriction.

8.  On 13 May 1975, the applicant accepted NJP for failure to obey a lawful order on or about 9 May 1975.  His punishment for this offense was a reduction to private/E-1 (PV1), and 30 days of correctional custody (suspended for 90 days).

9.  On 15 September 1975, the applicant accepted NJP for failure to be at his appointed place of duty at the prescribed time on or about 8 September 1972. His punishment for this offense was a forfeiture of $80.00 and 14 days of extra duty and restriction.


10.  On 21 November 1975, the applicant's unit commander prepared a Bar to Reenlistment Certificate on the applicant based on his record of NJP.  The commander stated that the applicant's performance in his MOS was substandard and since his arrival at the unit he had done little to nothing to show he intended to perform his duties in his MOS.  He further opined that the applicant was not trainable nor an asset to the military and he should under no condition be allowed to reenlist in the Army or any of its sister branches.  The appropriate authority approved the applicant’s bar to reenlistment, and on 22 November 1975, the applicant acknowledged receipt and elected neither to appeal the bar nor to submit a statement in his own behalf.  

11.  On 2 March 1976, the applicant accepted NJP for failure to obey a special order for Guard Post on or about 28 February 1976.  His punishment for this offense was a forfeiture of $80.00.

12.  On 13 October 1975, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of Chapter 13, 
Army Regulation 635-200, for unsuitability by reason of inaptitude.  

13.  On 16 October 1975, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights. Subsequent to this counseling, he requested consideration of his case and personal appearance before an administrative separation board.  He further elected not to submit a statement in his own behalf.  

14.  On 24 November 1975, the applicant's commander recommended that a rehabilitative transfer for the applicant be waived based on the applicant's refusal to exert any effort towards rehabilitation, and his substandard attitude and appearance.  Subsequently, on 30 December 1975, the approving authority approved the commander's request for waiver of the applicant's rehabilitative transfer.

15.  On 5 March 1976, a Board of Officers convened to determine whether the applicant should be discharged from the service under the provisions of Chapter 13, Army Regulation 635-200, by reason of unsuitability.  The Board found the applicant to be undesirable for further retention in the military based on unsuitability and deemed rehabilitation impossible.  The Board recommended the applicant be discharged due to unsuitability and that he be issued a GD.

16.  The separation authority approved the separation action and directed the applicant receive a GD.  On 28 April 1976, the applicant was discharged accordingly, after completing 2 years, 1 month, and 21 days of active military service.
17.  There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.  

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided the authority for the separation of enlisted personnel for unsuitability based on inaptitude, personality disorder, apathy, or homosexual tendencies.  Members separated under these provisions could receive either an HD or GD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his GD should be upgraded to an HD was carefully considered.  However, there is insufficient evidence to support granting the requested relief.  

2.  The applicant’s record is void of any indication of discrimination against the applicant by his chain of command, and he has failed to provide any independent evidence to support his claim of discrimination.  However, his record does reveal an extensive disciplinary history, which includes his acceptance of NJP on five separate occasions, which clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  

3.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.  As a result, his overall record of service was not sufficiently meritorious to support an HD at the time of his discharge, nor does it support an upgrade at this time.  

4.  The evidence of record further confirms the applicant's separation processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met, and the applicant's rights were fully protected throughout the separation process.  The applicant's case was properly considered by a board of officers at his request, and the applicant and his counsel were present at this hearing.  After considering the applicant's entire record of service, the board of officers recommended he be discharged for unsuitability and that he receive a GD based on his extensive record of misconduct.  The separation authority approved this recommendation, and the applicant was discharged accordingly.  

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 to amend the decision of the ABCMR set forth in Docket Number AC97-05298, dated 26 August 1998.




      _______ _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.

ABCMR Record of Proceedings (cont)                                         AR20080009962



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ABCMR Record of Proceedings (cont)                                         AR20080009962


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