IN THE CASE OF:	  

		BOARD DATE:	        23 DECEMBER 2008

		DOCKET NUMBER:  AR20080014241 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant states that he was victimized by racial discrimination.  He also contends that he would have easily received an honorable discharge if he were white.  He further states that he can think of a thousand reasons why his general discharge should be upgraded to an honorable discharge.  Additionally, he states that he is scheduled to leave prison in 2010.  Further, he states that at the time of his separation from the Army, he was suffering from drug abuse, and faults the Army for not counseling him on the hazards of drug abuse, which destroyed his abilities as a person.  He also requests a copy of his discharge certificate and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

3.  The applicant provides a self-authored letter, dated 9 October 2008, which was addressed to a member of the Army Review Boards Agency Support Division in St. Louis, Missouri 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 requests a copy of his DD Form 214.  A copy of the applicant's DD Form 214 will be provided to him along with this Record of Proceedings.  Therefore, this issue will not be further discussed in these Proceedings.

3.  The applicant’s military records show that he enlisted in the Regular Army on 23 March 1971 for training in military occupational specialty (MOS) 31M (Radio Relay and Carrier Attendant).  He completed basic training and entered advanced individual training (AIT) for MOS 31M; however, he was relieved from MOS 31M AIT due to his negative attitude, constant sleeping in class, insubordination towards an instructor, and academic deficiency.  He was then reassigned to Fort Sill, Oklahoma and completed on-the-job training (OJT) in MOS 15B (Missile Crewman).  After his OJT he was reassigned to Battery A, 3rd Battalion, 38th Field Artillery at Fort Sill.

4.  On 15 October 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order from a noncommissioned officer (NCO) and being disrespectful in language toward his superior NCO.  His punishment consisted of forfeiture of $25.00 pay per month for 1 month, extra duty for 7 days, and restriction for 
7 days.

5.  On 29 October 1971, the applicant accepted NJP under Article 15 of the UCMJ for three counts of failing to obey a lawful order from an NCO.  His punishment consisted of a suspended reduction in rank and pay grade from private first class (PFC)/E-3 to private (PV2)/E-2 and 30 days of restriction.  His suspended reduction was later vacated and duly executed,

6.  On 4 January 1972, the applicant accepted NJP under Article 15 of the UCMJ for dereliction in the performance of his duties.  His punishment consisted of a forfeiture of $25.00 pay per month for 1 month, extra duty for 14 days, and restriction for 14 days.

7.  On 19 January 1972, the applicant accepted NJP under Article 15 of the UCMJ for failing to obey a lawful order from an NCO, willfully disobeying a lawful command from a commissioned officer, and being disrespectful in language toward an NCO.  His punishment consisted of a reduction in rank and pay grade from PV2 to private (PV1)/E-1 and forfeiture of $30.00 pay per month for 
1 month.

8.  On 12 April 1972, the applicant departed for a tour in Germany.

9.  On 26 July 1972, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without authority from his place of duty on or about 1630 hours, 9 June 1972 and remaining so absent until on or about 0800 hours, 
10 June 1972; willfully disobeying a lawful command from a senior NCO; and being disrespectful in language toward his superior commissioned officer.  His punishment consisted of a forfeiture of $144.00 pay per month for 2 months, which was suspended for 60 days.  

10.  On 3 July 1972, a mental status evaluation was conducted on the applicant, and he was cleared for any administrative action deemed appropriate by his command.

11.  On 20 July 1972, the applicant’s suspended punishment of forfeiture of $144.00 pay per month for 2 months was vacated and duly executed.

12.  The applicant’s military records contained six witness statements prepared in July and August 1972 which portrayed the applicant as a Soldier with contempt for authority, a negative attitude, and a poor work ethic.  One statement, dated
26 July 1972 from a Captain B______ stated that he urged the applicant to keep away from anyone who may offer him drugs, and that the applicant said he would because he realized the danger in using “dope.”  He also stated that the applicant admitted to using drugs regularly and that he asked the applicant to seek help, but that the applicant said that he did not need help.

13.  In a certificate, dated 29 August 1972, the applicant’s commanding officer stated that the applicant was a rehabilitative transfer from another unit, and that the applicant informed him that he had been counseled by the battalion commander concerning his transfer and realized that he was being given a chance to redeem himself from an already initiated relief from the service for unsuitability under the provisions of Army Regulation 635-212 (Discharge for Unfitness and Unsuitability).  The applicant’s commanding officer also informed him that he could not work in his primary MOS due to the fact that he could not be successfully screened under the human reliability program, and asked him if he would like to be assigned as his driver/radio transmission operator.  He further stated that the applicant agreed and that he stated that he would try his best to pass the military driver’s examination, but that his work only went well until 
6 August 1972, when he was apprehended by German authorities for possession of suspected marijuana.  He also stated, in pertinent part, that the applicant felt that his use of drugs was hampering his thought process and that he would be 
willing to accept any help offered.  The applicant’s commanding officer continued by stating that the applicant was sent to the dispensary on 17 August 1972, and that an appointment was made for him to visit the drug counselor at Stuttgart Army Hospital.

14.  On 29 August 1972, the applicant’s commanding officer informed him that he intended to recommend him for elimination from the service under the provisions of Army Regulation 635-212 for unsuitability.  The reasons for this action were the applicant’s constant refusal to work assigned duties, cursing and threatening both NCOs and commissioned officers, and suspected habitual use of hashish and other drugs.  The applicant was also advised of his rights.

15.  On 31 August 1972, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action to accomplish his separation for unsuitability under the provisions of Army Regulation 635-212.  He waived consideration of his case and personal appearance before a board of officers, and elected not to submit statements in his own behalf.  He also waived representation by counsel.  He also acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.  He further understood that, as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  

16.  On 20 September 1972, the proper separation authority approved the applicant's discharge for unsuitability under the provisions of Army Regulation 635-212, and waived further counseling and rehabilitation since further duty by the applicant would be a hazard to the military mission and to the applicant.  He also directed that the applicant be furnished a DD Form 257A (General Discharge Certificate).  On 28 September 1972, the applicant was discharged accordingly.

17.  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.

18.  Army Regulation 635-212 (Personnel Separations – Discharge - Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b provided, in pertinent part, for discharge due to unsuitability because of inaptitude, character and behavior disorders, and apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  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.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a 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.

20.  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.    

21.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214 and other separation documents.  Paragraph 2-10 states, in pertinent part, to issue a DD Form 257A (General Discharge Certificate) appropriately to all Soldiers receiving a general discharge. However, the DD Form 257 was cancelled by the Office of the Secretary of Defense (OSD) in August 2003 as directed by the Air Force who was the Office of Primary Responsibility (OPR) for the form.  On 21 April 2004, upon receipt of this information, the Army also elected to make the form obsolete.  Therefore, the prescribing guidance in Army Regulation 635-5, paragraph 2-10 for issuing the form to Soldiers receiving a "general discharge" is no longer applicable.  This change will be reflected in the next revision of Army Regulation 635-5.  The Army has been advised to destroy the inventory of DD Forms 257A to avoid issuing an obsolete form.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge.  
2.  The applicant’s contention that he was a victim of racial discrimination was considered, but not found to have any merit.  The applicant provided no evidence to support his contention that he was a victim of racial discrimination.

3.  The applicant’s contention that the Army was at fault for not counseling him on the hazards of drug abuse was also considered, but not found to have any 
merit.  The evidence of record clearly shows that his command attempted to get treatment for him, and that he was counseled to stay away from people who might offer him drugs.

4.  Additionally, the applicant’s contention that he can think of a thousand reasons why his general discharge should be upgraded to an honorable discharge was noted.  However, he only provided two “reasons,” and both of these appear to be nothing more than an attempt to deflect blame for his situation onto others instead of accepting responsibility for his own actions.

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.

6.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with applicable regulations.  It also confirms that the rights of the applicant were fully protected throughout the separation process.  While the type of discharge directed was considered appropriate by the applicant’s chain of command, a case could be made that an undesirable discharge would have been more appropriate given the applicant’s extensive history of NJP.  

7.  The applicant’s record of service shows that he was relieved from MOS 31M AIT due to his negative attitude, constant sleeping in class, insubordination towards an instructor, and academic deficiency.  It also shows that he accepted NJP under Article 15 of the UCMJ on five occasions for multiple offenses of the UCMJ, including failing to obey lawful orders from NCOs, being disrespectful in language toward NCOs, dereliction in the performance of his duties, willfully disobeying a lawful command from a commissioned officer, absenting himself without authority from his place of duty, and being disrespectful in language toward his superior commissioned officer.  While the applicant’s command determined that he should be issued a general discharge, based on his extensive record of indiscipline in less than 18 months, he is not entitled to an honorable discharge.  

8.  The applicant requests a copy of his discharge certificate.  Discharge certificates are prepared in original only; therefore, no copies are filed in a Soldier's personnel records.  Regardless, the issuance of General Discharge Certificates has since been cancelled/rescinded.  As such, relief cannot be granted on this issue.

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.



      _________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)                                         AR20080014241



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ABCMR Record of Proceedings (cont)                                         AR20080014241



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