IN THE CASE OF:	  

		BOARD DATE:	   1 July 2010

		DOCKET NUMBER:  AR20090021919 


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 his 1972 discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states, in effect, he was a victim of prejudice in that he was the minority in a population which was 90-percent black.  He states he was beat up, robbed, his car was stripped, and his teeth were knocked out.  He notes he asked to be reassigned, but his request was denied.  The applicant states he enlisted for 2 years, but he was discharged with less than 6 months to go on his enlistment contract.

3.  The applicant provides no additional evidence in support of his request.

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.  Records available to the Board indicate the applicant enlisted in the Regular Army on 30 April 1971.  He successfully completed training and by October 1971 he had been advanced to pay grade E-3.  In November 1971 he was assigned to Fort Carson, Colorado, as a motor transportation operator.

3.  Between May and August 1972 the applicant was punished three times under Article 15 of the Uniform Code of Military Justice for failing to be at his appointed place of duty and two periods of absence without leave.  As a result, by August 1972 he had been reduced to pay grade E-1.

4.  The applicant's records contain no evidence he was ever awarded any personal decorations.

5.  Documents associated with the applicant's administrative separation were not in records available to the Board.  However, the applicant's 1972 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under other than honorable conditions on 20 December 1972 under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  He was credited with completion of 1 year, 6 months, and 20 days of active Federal service.

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

7.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

8.  Army Regulation 635-200 (Personnel Separations), 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 discharge under other than honorable conditions was the result of several incidents of minor misconduct.  The applicant's argument that he was a victim of racial prejudice is not supported by any evidence of record or evidence provided by the applicant.

2.  Notwithstanding the fact the documents associated with the applicant's administrative discharge are not available to the Board, in the absence of evidence to the contrary, it is presumed that all requirements of law and regulations then in effect were met and the rights of the applicant were fully protected throughout the separation process.

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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090021919



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ABCMR Record of Proceedings (cont)                                         AR20090021919



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