IN THE CASE OF:	  

		BOARD DATE:	  28 February 2012

		DOCKET NUMBER:  AR20110016868 


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 to a general discharge.

2.  The applicant states:

* he was young and immature at the time
* he encountered racism from the same sergeants who were supposed to set an example for him
* he was constantly harassed and called names
* he sustained an injury and he continues to suffer the effects of this injury today

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* Five character reference letters
* Standard Form (SF) 93 (Report of Medical History)
* Two self-authored statements
* Selected clinical records 
* DA Form 2A (Personnel Qualification Record)

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 records show he was born on 12 October 1958 and enlisted in the Regular Army at 18 years of age on 11 January 1977.  He completed basic combat and advanced individual training and he held military occupational specialty 94B (Food Service Specialist).  He was assigned to the 2nd Battalion, 67th Armor, Fort Hood, TX.

3.  He was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar.  The highest rank/grade he attained during his military service was private/E-2. 

4.  His service records contain an extensive history of negative counseling by members of his chain of command for:

* shoplifting
* multiple instances of being late for work
* failing to keeping his room and/or wall locker clean
* driving a car without tags
* failing to report to duty
* being disrespectful towards an officer
* substandard appearance/uniform
* negative attitude towards the Army and his job
* substandard performance
* unreliability and needing constant attention
* missing equipment and/or clothing
* a lack of motivation
* being argumentative and disrespectful
* a poor general appearance

5.  His records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 21 September 1977, for failing to go at the time prescribed to his appointed place of duty.

6.  On 26 September 1977, he was arrested and confined by civil authorities.  He was released from confinement and returned to his unit on 6 October 1977.  The facts and circumstances surrounding his arrest/release are not available for review with this case.

7.  On 28 September 1977, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his poor performance, an absence of promotion potential, unreliability, inability to perform the most menial tasks, and the need for constant supervision.  The applicant was furnished a copy of this bar and he elected not to submit a statement on his own behalf.  The bar was ultimately approved by the approval authority. 

8.  On 19 October 1977, the applicant's immediate commander notified the applicant of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to misconduct – frequent incidents of a discreditable nature with civil or military authorities. 

9.  The applicant acknowledged he had been notified of the pending separation action against him and that he had been advised by counsel of the basis for the contemplated action to separate him.  He requested consideration of his case by a board of officers, a personal appearance before a board of officers, and elected to submit statements in his own behalf (but no statements are available).

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

11.  On 19 October 1977, his immediate commander initiated elimination action against him under the provisions of chapter 13, Army Regulation 635-200, due to misconduct.  The immediate commander stated that since the applicant's assignment to the unit he had been arrested twice, once by civil authorities.  He had received multiple counseling statements and he was unable to follow simple instructions.  All reasonable efforts at rehabilitation had proved futile.  Continued service would have resulted in continued disruptive influence in this unit or others. 

12.  On 20 October and 4 November 1977, his intermediate and senior commanders recommended approval of the applicant's discharge and requested a waiver of any further requirements for counseling or rehabilitative transfer.
13.  His records reveal, while being processed for separation, he accepted additional NJP under the provisions of Article 15 of the UCMJ on:

* 21 October 1977, for disobeying a lawful order from a commissioned officer and failing to go at the time prescribed to his appointed place of duty
* 27 October 1977, for failing to go at the time prescribed to his appointed place of duty and breaking restriction
* 9 November 1977, for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order

14.  On 13 December 1977, while processing for separation, his command preferred court-martial charges against him for four specifications of failing to go at the time prescribed to his appointed place of duty.  However, the disposition of these charges is not available. 

15.  On 19 December 1977, a board of officers convened at Fort Hood, TX, with the applicant and his counsel present.  The board found sufficient evidence to support his elimination from the Army under chapter 13 for frequent incidents of a discreditable nature with civil or military authorities with the issuance of an under other than honorable conditions discharge.

16.  On 27 January 1978, the separation authority approved the findings and recommendations of the board of officers and ordered the applicant discharged from the Army under the provisions of chapter 13, Army Regulation 635-200, due to misconduct with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  Accordingly, the applicant was discharged on 16 February 1978.

17.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with an under other than honorable conditions character of service.  He had completed a total of 1 year and 25 days of creditable active military service and he had 11 days of lost time.

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

19.  He submitted:

	a.  Multiple character reference letters or letters of support from counselors, program managers, or other professionals who opine the applicant is an honest, 

respected, and upstanding individual.  He has participated in a transitional treatment program and he has made noticeable progress. 

	b.  An SF 88, dated 12 January 1978, which shows the applicant underwent a separation physical and was found qualified for separation.  

	c.  Clinical records, dated 9 September 1977, that show he was stabbed in the right foot on 29 August 1977 and he had an abscess in his right foot secondary to the stab. 

	d.  Two self-authored statements wherein he describes his Army experience, the racism he was subjected to, and the injury to his foot. 

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 at the time contained the policy and outlined the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an under other than honorable conditions discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

21.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records reveal a history of misconduct which includes four instances of NJP, an extensive history of negative counseling, and a bar to reenlistment.  He was provided multiple counseling and/or opportunities for rehabilitation by his chain of command, but he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

2.  The evidence of record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  His character of service is 

commensurate with his overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  

3.  With respect to his contentions:

	a.  He contends that he was young and immature.  However, the applicant was age 18 at the time of enlistment.  There is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their military service obligations. 

	b.  He contends that he encountered racism but fails to show evidence of this contention.  There is no evidence he filed any complaints, addressed this issue with his chain of command, or raised the issue during his board of officer's proceedings.  

	c.  Contrary to his contention that he was constantly harassed and called names, the evidence of record shows he was counseled on multiple occasions by his chain of command and he underwent multiple rehabilitative efforts, but he failed to become an effective Soldier. 

	d.  He contends that he sustained an injury and provides clinical records to show he underwent treatment for this injury.  However, there is no evidence to show that his foot injury was the cause or a substantial contributing cause of the misconduct that led to his discharge under other than honorable conditions. 

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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)                                         AR20110016868



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ABCMR Record of Proceedings (cont)                                         AR20110016868



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