BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011529 


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, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, during his enlistment, he was unfairly singled out and forced to wear boots that were too small, which caused him pain and permanent foot damage.  He claims he endured daily racial slurs from drill sergeants and was unfairly punished for refusing to tolerate their mistreatment.  He now requests his discharge be upgraded in order for him to be able to receive medical benefits and to assist him in gaining proper employment.  

3.  The applicant provides no documentary evidence in support of his 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 record shows that he enlisted in the Regular Army and entered active duty on 27 May 1980.  He successfully completed basic training at Fort Jackson, South Carolina, and was assigned to Fort Eustis, Virginia, to attend advanced individual training (AIT) in military occupational specialty (MOS) 71N (Movements Specialist).  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was never advanced beyond the rank of private/E-1 (PV1).  His record documents no acts of valor or significant achievement.  

4.  The applicant's record shows he was dropped from the MOS 71N course as an academic failure and transferred to the MOS 71L course on 28 September 1980.  

5.  On 6 October 1980, while still attending AIT in MOS 71L, the applicant departed absent without leave (AWOL) from his unit.  He remained away for 
31 days until returning to military control on 6 November 1980.  

6.  On 9 December 1980, the unit commander notified the applicant of her intent to initiate action to separate the applicant under the provisions of paragraph 5-31, Army Regulation 635-200 (Expeditious Discharge Program (EDP)).  The commander cited the applicant's total disregard for military authority, poor judgment, and lack of motivation to become a productive Soldier as the basis for taking the action.  

7.  The unit commander included a statement in the separation packet that indicated the applicant utilized his time in the 71L course trying to produce evidence to substantiate his request for a medical discharge, which was based on his claim the Army was responsible for his feet problems because he was allegedly issued the wrong size combat boots.  The commander stated this claim was investigated with the assistance of Reception Station, Staff Judge Advocate, and Medical Service Personnel, who all verified the inaccuracy of the applicant's claim.  The commander indicated that two weeks after reporting for training in MOS 71L, the applicant went AWOL and received a field grade Article 15 for this action.  She further indicated the applicant had no motivation for further military service.

8.  Statements from the applicant's senior drill sergeant (SDS) and drill sergeant (DS) were also included in the separation packet.  The SDS indicated the applicant entered the unit with a poor attitude, a lack of motivation, and a lack of self-discipline.  He indicated the applicant complained of problems with his feet that resulted from the Army issuing him boots that were too small.  The SDS indicated he advised the applicant to see a doctor, which he did.  The doctor found nothing was wrong with the applicant's feet.  
9.  The SDS also indicated that after seeing the doctor, applicant went AWOL and came back requesting a discharge.  He claims his impression was the applicant was looking for an easy way out of the Army.  In his statement, the DS indicated the applicant was wearing sneakers when he reported to the unit and informed him he received the wrong size boots in basic training.  He further stated that the applicant went on sick call and a doctor told him there was nothing he could do for him.  The applicant wrote a statement against the doctor claiming the Army messed his feet up and that the doctor had no concern for his claim.  He states two days later the applicant went AWOL and after his return, he was admitted to the hospital for what he claimed was back trouble.  The applicant left the hospital without permission and was released from the hospital a few days later after nothing medically wrong was found on him.  The DS stated that the applicant simply wanted out of the service and would do anything to accomplish this task.  He stated the applicant had no motivation, showed a very poor attitude toward training, and would never become a productive Soldier.  

10.  On 9 December 1980, the applicant acknowledged the commander's separation action notification in writing and indicated that he voluntarily consented to the recommended EDP discharge  He further acknowledged that he understood that if he received a GD, he could expect to encounter substantial prejudice in civilian life, and he acknowledged that he had been afforded the opportunity to consult with legal counsel.  The applicant also elected not to make a statement in his own behalf.  The applicant also completed an option statement indicating he did not desire a separation medical examination.  

11.  On 10 December 1980, the separation authority approved the applicant’s separation under the provisions of the EDP, and directed the applicant receive a GD.  On 29 December 1980, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was separated under the provisions of paragraph 5-31, Army Regulation 635-200 (EDP) after completing 5 months and 1 day of creditable active military service and accruing 31 days of time lost due to AWOL.

12.  On 6 April 1984, the Army Discharge Review Board (ADRB), after carefully considering the applicant's military records and the issues he raised, determined the applicant's discharge was proper and equitable and it voted to deny his request for an for an upgrade of his discharge. 

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31, then in effect, provided the policy and outlined the procedures for separating individuals under the EDP.  The EDP provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An HD or GD could be issued under this program.  
14.  Paragraph 3-7a of the same regulation provides that an HD 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded because he was unfairly singled out and forced to wear boots that were too small, which caused him pain and permanent foot damage; and because he endured daily racial slurs from drill sergeants and was unfairly punished for refusing to tolerate their mistreatment was carefully considered.  However, there is insufficient evidence to support these claims.  

2.  While every claim of racial prejudice is taken seriously, the evidence of record fails to show the applicant was subjected to any forms of racial bias during his military service, and he has failed to provide any independent evidence to support this claim.  Further, there is also no evidence of record or independent evidence provided by him that supports his claim that he was issued boots that were too small, which resulted in permanent foot damage.  The record shows the applicant was afforded the opportunity to seek and received medical treatment and that his assertion that he was issued boots that were too small in basic training was investigated by representatives of his chain of command, reception stations and SJA, and was unsubstantiated.  

3.  The evidence of record does confirm the applicant's separation processing under the provisions of the EDP was accomplished in accordance with the applicable regulation, and that the applicant voluntarily consented to the discharge and elected not to make a statement in his own behalf at the time.  All requirements of law and regulation met and his rights were fully protected throughout the separation process.  

4.  The applicant's record reveals an extensive disciplinary history that clearly diminished the quality of his service below that meriting a fully honorable discharge.  Therefore, absent any evidence of error or injustice related to his separation processing , there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.  

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
      
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)                                         AR20090011529



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ABCMR Record of Proceedings (cont)                                         AR20090011529



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