IN THE CASE OF:	  

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090020654 


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 that his discharge under other than honorable conditions be upgraded to a more favorable discharge.

2.  The applicant states that he feels that his discharge was racially motivated and that he had to move off post to avoid further complications.

3.  The applicant provides no additional documents with 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 enlisted in the Regular Army in Los Angeles, California, on 12 July 1976 for a period of 3 years and training as a helicopter repairman.  He completed his basic training at Fort Knox, Kentucky, and was transferred to Fort Rucker, Alabama, to undergo his advanced individual training as a helicopter repairman in military occupational specialty 67V.

3.  On 15 November 1976, he was eliminated from 67V training due to academic failure and lack of application and/or motivation.  He was transferred to Aberdeen Proving Ground, Maryland, to undergo training as an automotive repairman.

4.  On 16 December 1976, nonjudicial punishment (NJP) was imposed against him for two specifications of failure to go to his place of duty.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

5.  On 20 January 1977, NJP was imposed against him for disobeying as lawful order from a superior noncommissioned officer.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

6.  On 3 February 1977, NJP was imposed against him for disobeying a lawful order from a superior noncommissioned officer.  His punishment consisted of a forfeiture of pay, extra duty, and restriction.

7.  The applicant completed his training and was transferred to Fort Bragg, North Carolina, on 22 February 1977.

8.  On 14 April 1977, NJP was imposed against him for sleeping while on barracks guard.  His punishment consisted of a forfeiture of pay and extra duty.

9.  On 11 May 1977, the applicant's commander initiated a bar to reenlistment against him.  He cited the applicant's disciplinary record and his unsatisfactory conduct and efficiency as the basis for his recommendation.  The applicant declined to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment.

10.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records because they were loaned to the Department of Veterans Affairs.  However, his records contain a DD Form 214 (Report of Separation from Active Duty) which shows he was discharged under other than honorable conditions on 5 October 1977 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 
13-5a, due to unfitness for pattern of misconduct.  He had served 1 year, 2 months, and 24 days of total active service.

11.  On 27 October 1981, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that he felt he was being mistreated and he was not understood morally.  He also stated that his understanding of the military services did not conform to the lifestyle he was familiar with.  The applicant was granted a personal appearance before the ADRB Travel Panel in Los Angeles, California, on 9 May 1983.  After considering all of the available evidence and testimony, the ADRB determined the applicant's discharge was both proper and equitable and voted unanimously to deny his request on 25 May 1983.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 established policy and procedures for separating personnel for unfitness.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  A discharge under other than honorable conditions was normally considered appropriate.

13.  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.

14.  Army Regulation 635-200, paragraph 3-7b, 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.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons were appropriate considering all of the available facts of the case.

3.  The applicant's contentions have been noted; however, they are not supported by either the evidence submitted with his application or the evidence of record.  The applicant was afforded numerous opportunities to rehabilitate himself, to conform to military standards, and to prove that he could Soldier if he so desired; however, his misconduct continued up until the time of his discharge.  Therefore, his record of undistinguished service does not warrant an upgrade of his discharge.

4.  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)                                         AR20090020654



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ABCMR Record of Proceedings (cont)                                         AR20090020654



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