BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090019447 


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 upgrade of his general under honorable conditions discharge to an honorable discharge.

2.  The applicant states he was discharged because he got into an altercation with a racist noncommissioned officer (NCO) but he served his country well.  He also states he was not given the opportunity to continue to serve his country because of the NCO's lack of respect for his service.  He further states he was
17 years old, did not understand the extent of racism in the military, or how to approach anyone when faced with this matter.  He believes an NCO who was much older than him should have not been so cruel to him because he was Hispanic.  He concludes by stating he only had one negative incident in the military and he feels he was unjustly judged negatively for this one incident.  All he did was argue with the NCO.  He states the NCO hit him but he still contained his anger and asked to see the commander.

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 10 August 1976.  He was
17 years and 4 months old at the time.

3.  The applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the cited offenses:

* 25 February 1977 - possession of marijuana on 11 February 1977
* 27 April 1977 - possession of marijuana on 9 April and 13 April 1977
* 30 April 1977 - disobeying a lawful order from an NCO on 25 April 1977
* 6 June 1977 - failing to go at the time prescribed to his appointed place of duty on 1 June 1977 and failing to obey a lawful order from an NCO on 2 June 1977

4.  On 27 June 1977, the applicant’s unit commander initiated action to administratively separate him from active duty under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
5-37 (Expeditious Discharge Program (EDP)).  The basis for the recommendation was the applicant’s unsatisfactory conduct and efficiency, substandard appearance, unresponsiveness to numerous counseling from his chain of command, disobeying and threatening NCOs, and his continual desire to get out of the Army.  The unit commander indicated he was recommending the applicant receive a general discharge.

5.  On the same date, the applicant acknowledged receipt of the proposed separation action and voluntarily consented to the discharge.  He waived his right to submit a statement in his own behalf.

6.  The appropriate authority approved the separation action and on 12 July 1977 he was accordingly discharged with a General Discharge Certificate.  He completed 11 months and 3 days of creditable active service.

7.  The applicant's record does not contain any evidence showing he applied to the Army Discharge Review Board to have his discharge upgraded within the board's 15-year statute of limitations.

8.  References:

	a.  Army Regulation 635-200 provides the policy and sets forth the procedures for administrative separation of enlisted personnel.  Paragraph 5-37, then in effect, provided for the EDP.  This program provided for the discharge of individuals who had completed at least 6 months, but less than 36 months of active duty and who demonstrated by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential that they could not or would not meet acceptable standards.  Such personnel were issued a general under honorable conditions or honorable discharge, as appropriate.

	b.  Army Regulation 635-200, paragraph 3-7a, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s general under honorable conditions discharge was appropriate considering the basis for his separation.  His records show his service was marred by repeated incidents of disciplinary infractions.  There is no evidence indicating his separation was not accomplished in compliance with regulatory guidance and no indication of any procedural errors that would have jeopardized his rights.

2.  The applicant's contention that he was young, did not understand the extent of racism in the military, and did not know how to approach anyone is noted; however, there is no evidence of record nor did the applicant submit any evidence that corroborates his allegations of racist treatment.

3.  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)                                         AR20090019447



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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