IN THE CASE OF:	 

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090013624 


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 discharge be upgraded.

2.  The applicant states, in effect, that he was a victim of racial discrimination due to whistle blowing.  He also states, in effect, that he was in a company that was 80 percent African American and that several leaders in his chain of command were prejudiced.  He also states, in effect, that he was framed because mail was found in his personal gear.

3.  The applicant submits a self authored statement and a copy of his DD Form 214 (Report of Separation from Active Duty) 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.  On 19 February 1975, the applicant enlisted in the Regular Army.

3.  On 2 September 1975, the applicant accepted nonjudicial punishment (NJP) for failing to go at the appointed time to his prescribed place of duty on or about 28 August 1975 and for willfully disobeying a lawful order from a superior noncommissioned officer on or about 3 September 1975.  His imposed punishment included 5 days extra duty and a forfeiture of $89.00 pay.

4.  On 12 September 1975, the applicant accepted NJP for failing to maintain his property in a clean condition on or about 8 September 1975 and for using abusive and unauthorized language toward a Soldier on 10 September 1975.  His imposed punishment included 30 days restriction, 30 days extra duty, and a forfeiture of $150.00 pay for 2 months.

5.  The applicant's record contains a summary of his record dated 21 October 1975, which shows that he was counseled for his uniform and personal appearance, calling a trainee "N----r," driving an unregistered car, and opening mail in the unit mailroom.

6.  On 21 October 1975, the unit's commander recommended that the applicant be discharged for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 13-1.  The commander’s recommendation was based on the applicant’s misconduct.  The commander further stated that the applicant was not amenable to further rehabilitation and other disposition was inappropriate because of his misconduct.

7.  On 28 October 1975, a mental status evaluation cleared the applicant for any administrative action deemed appropriate.

8.  On 4 November 1975, the applicant acknowledged receipt of the commander’s recommendation and proposed actions under the provisions of Army Regulation 635-200.  The applicant waived consideration of his case by a board of officers and elected not to provide a statement in his own behalf.  The applicant also acknowledged that he understood that if an Undesirable Discharge Certificate were issued he could be deprived of many or all Army benefits, that he could be ineligible for many or all Veterans Administration benefits, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

9.  On 18 November 1975, the appropriate authority approved the recommendation to administratively separate the applicant and directed that he receive an undesirable discharge under the provisions of Army Regulation 635-200, paragraph 13-5a(1).  On 21 November 1975, the applicant was discharged with an under other than honorable conditions discharge.  The DD Form 214 he was issued at the time confirms he completed a total of 9 months and 3 days of creditable active duty.

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

11.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  At the time, chapter 13 (Separation for Unfitness or Unsuitability) of this Army regulation provided the procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  An individual separated by reason of unfitness would be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate could be issued if the individual was awarded a personal decoration or if warranted by the particular circumstances in their case.

12.  Army Regulation 635-200, paragraph 3-7, provides 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.  

13.  Army Regulation 635-200, paragraph 3-7, provides 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.

DISCUSSION AND CONCLUSIONS: 

1.  There is no evidence in the applicant's record nor did the applicant submit any evidence that shows he was a victim of racial discrimination due to his being a whistle blower.  On the contrary, the evidence of record shows that he used derogatory racial epithets towards another Soldier.  The evidence of record also shows that the applicant opened mail that was not his.  Therefore, he was discharged with an under other than honorable conditions discharge and his records are correct as currently constituted.  There is no basis to change the applicant's character of service or the reason for his discharge.

2.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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)                                         AR20090013624



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1