IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100016977 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states his discharge was based on racism.

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 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 16 November 1976 for a period of 3 years.  Records show he was 17 years of old at the time of his enlistment.  Upon completion of basic combat and advanced training, he was awarded 
military occupational specialty 31M (Multichannel Communication Equipment Operator).  The highest rank/grade the applicant attained was private (PV2)/E-2.
3.  The applicant received five nonjudical punishments (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), between 10 December 1976 and
11 August 1977 for five specifications of disobeying a lawful order from a superior noncommissioned officer (NCO), eight specifications of failing to go to at the time prescribed to his appointed place of duty, breaking restrictions, and three specifications of being absent from his place of duty.  The punishments for these NJPs consisted of reduction to pay grade E-1, forfeitures of pay, restrictions, and extra duties.

4.  On 8 December 1977, the applicant was convicted by a special court-martial for two specifications of disobeying a lawful order from an NCO, one specification of being disrespectful in language to a senior NCO, and two specifications of communicating a threat to an NCO.  His sentence consisted of forfeiture of 2/3 pay per month for two months and confinement at hard labor for three months.

5.  On an undated document, the company commander notified the applicant that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter13, for misconduct - frequent incidents of a discreditable nature.  The company commander stated that the reason for his recommendation for elimination were the applicant’s frequent acts of a discreditable nature in that he received one court-martial and three punishments under Article 15, UCMJ.  The company commander further stated that the applicant was sent to the Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with an improved attitude and motivation.  However, his actions since arriving to the Brigade precluded accomplishment of the objective as evidenced by 52 discreditable acts outlined in counseling statements.  The company commander stated the applicant has demonstrated little desire for returning to duty and he has received counseling by members of the leadership team and members of the professional staff agencies.  He also stated that in his opinion, the applicant possesses the mental and physical ability necessary to be an effective Soldier, but his present record and his failure to react constructively to the rehabilitation program are indicative that the applicant should not be retained in the service. 

6.  On 8 February 1978, the applicant acknowledged with his signature that he had been advised by consulting counsel for the basis for the contemplated action to separate him from the Army for misconduct, under the provisions of Army Regulation 635-200, chapter 13.  The applicant waived consideration and personal appearance before a board of officers.  The applicant also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge is issued to him.  The applicant’s legal counsel also affixed his signature to the document.

7.  On 10 February 1978, the separation authority waived rehabilitation requirements and approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

8.  The applicant’s DD Form 214 (Report of Separation from Active Duty) shows he entered active duty on 16 November 1976 and he was discharged on
14 February 1978 with an under other than honorable conditions discharge under the provisions of Army Regulation 635-200, paragraph 13-5a(1).  He completed
1 year and 2 days of total active service.  The DD Form 214 also shows he had 87 days of time lost from 1 November 1977 through 19 November 1977 and from
8 December 1977 through 13 February 1978.

9.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 18 September 1979, the ADRB denied the applicant’s request for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

      a.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  At that time, paragraph 13-5a(1) provided for the separation of individuals for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  When separation for unfitness was warranted an under other than honorable conditions discharge was normally considered appropriate.

	b.  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 contends that his under other than honorable conditions discharge should be upgraded; that his discharge was based on racism.  The applicant’s administrative discharge was accomplished in compliance with applicable regulations and the rights of the applicant were fully protected 


throughout the separation process.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.  Additionally, the applicant claims his discharge was based on racism.  However, the applicant did not mention this issue with his legal counsel during the separation process nor did he provide any evidence to support his claim.

2.  The applicant’s record of service, as evidenced by his special court-martial and multiple Article 15s, clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100016977



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ABCMR Record of Proceedings (cont)                                         AR20100016977



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