BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100024135 


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 discharge characterized as under other than honorable conditions to honorable.

2.  He states he was unjustly treated and singled out because of his race during his service in the military.  He explains that several Caucasian superior officers would harass and single out the black cadets.  He states he received numerous bogus Article 15's for disobeying those officers.  He adds he was demoted and fined under each Article 15 and eventually discharged under other than honorable conditions.  The upgrade of his discharge is to enable him to receive medical, educational, and all other Department of Veterans Affairs (VA) benefits.

3.  He provides:

* self-authored statement
* DD Form 214 (Report of Separation from Active Duty)
* three supporting statements
* his sister's recognized achievements and pictures

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's record shows he enlisted in the Regular Army on 31 October 1974.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on nine occasions on the following dates for the following offenses:

* 24 March 1975, altering an official record
* 13 July 1975, breaking restriction
* 18 July 1975, being absent from his place of duty and failing to go at the time prescribed to his appointed place of duty on two separate occasions
* 18 August 1975, willfully disobeying a lawful command
* 21 August 1975, failing to go at the time prescribed to his appointed place of duty
* 19 September 1975, being disrespectful to three superior noncommissioned officers
* 4 November 1975, breaking restriction
* 1 December 1975, being absent without authority from 30 October 1975 to 10 November 1975
* 6 February 1976, failing to go at the time prescribed to his appointed place of duty on two separate occasions

4.  On 15 December 1975, the company commander notified the applicant of his intent to recommend that he be discharged under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of unfitness (frequent incidents of a discreditable nature with civil or military authorities).

5.  On 16 December 1975, he consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he requested consideration of his case by a board of officers, to personally appear before a board of officers, and to be represented by counsel.

6.  He acknowledged that he understood he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him.  He further understood that as a result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and he may expect to encounter substantial prejudice in civilian life.

7.  On 23 February 1976, a board of officers was convened to determine whether the applicant should be discharged under the provisions of Army Regulation 635-200.  He appeared before the board with counsel.  After considering the evidence, the board found that he was unfit for further retention in the military service because of habits and traits of character manifested by the repeated commission of petty offenses.  The board recommended that he be discharged from the service because of unfitness and issued an Undesirable Discharge Certificate.  The board findings were approved on 17 March 1976.

8.  The applicant's DD Form 214 shows he was discharged on 25 March 1976 under the provisions of paragraph 13-5a(1), Army Regulation 635-200, under other than honorable conditions.  He completed a total of 1 year, 4 months, and 8 days of total active service with 17 days of lost time.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  The supporting statements he provided from his sister and two friends speak highly of his dedication to his community, family, and church.  His sister offered that his commitment to the elders, the sick and shut-in, and to those who were less fortunate was steadfast.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for unfitness for frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an Undesirable Discharge Certificate was issued.  An honorable or general discharge may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his case.

12.  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.

13.  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 contends that his discharge should be upgraded for the purpose of securing VA benefits.  There are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of securing veterans' benefits. The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  The applicant failed to provide such evidence.

2.  He also contends he was unjustly treated and singled out because of his race and this discrimination led to receipt of numerous bogus Article 15's.  However, there is no evidence and he did not provide any to show he was singled out and the Article 15's were rendered in error.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, the evidence shows he appeared before a board of officers with his counsel and the board found him unfit for further retention in the military.  There is no evidence he was discriminated against or that his discharge was racially motivated.

3.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20100024135



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ABCMR Record of Proceedings (cont)                                         AR20100024135



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