IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110017146 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD).  

2.  The applicant states he is in need of veterans benefits’ and it has been
31 years since his discharge.  He states his discharge resulted from a racial incident with a sergeant (SGT) who always made racial comments about his American Indian heritage.  The SGT woke him and made a derogatory racial comment and he struck the SGT which resulted in a general court-martial (GCM) conviction and 1 year in confinement which he served.  

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 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 15 May 1979, and he was trained in and awarded military occupational specialty 45N (Tank Turret Mechanic).  His record shows he was never advanced beyond the grade of private/E-1 and it documents no acts of valor or significant achievement. 

3.  The applicant's disciplinary record includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ):

   a.  on 1 October 1979, for possession of marijuana and possession of a smoking device;
   
   b.  on 13 December 1979, for willfully damaging government property, being drunk and disorderly, failure to go to his appointed place of duty at the time prescribed (twice), and disobeying a lawful order; and
   
   c.  on 12 May 1980, for conspiring to use and transfer marijuana.  

4.  His disciplinary record also includes a GCM conviction on 2 April 1980 for violating Articles 91, 92, and 134 of the UCMJ by committing the following offenses:

* three specifications of willfully disobeying a noncommissioned officer (NCO)
* communicating a threat
* being drunk and disorderly
* possession of marijuana
* assault
* being disrespectful towards an NCO
* disobeying a lawful order

5.  On 19 May 1980, the retraining unit commander recommended that the applicant be separated under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-33b, for misconduct, frequent incidents of a discreditable nature.  The commander cited the applicant's disciplinary history that included a GCM conviction and acceptance of NJP on three separate occasions.  The commander also confirmed the applicant had received extensive counseling from social workers, the leadership team, and unit cadre since his arrival at the retraining brigade and he did not respond favorably to this counseling.  


6.  On 23 May 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him and the effect of a waiver of those rights and his right to consulting counsel.  He elected not to submit statements in his own behalf.  He also acknowledged that he understood if he received a UOTHC discharge he could be ineligible for many or all benefits as a veteran under both Federal and State law and that he could expect to encounter substantial prejudice in civilian life.  

7.  On 1 June 1980, the separation authority approved the applicant's separation for misconduct under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a UOTHC discharge.  On 1 July 1980, the applicant was discharged accordingly.

8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he held the rank of private/E-1 on the date of his discharge and he completed a total of 11 months and 4 days of creditable active military service and accrued 74 days of time lost due to confinement.  

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

10.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

11.  Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14.  It states that a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.




DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded based on the following reasons:  His discharge was based on a racial incident, 31 years have passed and he has paid for his actions, and that he needs veterans’ benefits has been carefully considered.  However, there is insufficient evidence to support these claims.  The Army does not now have and it has never had a policy to upgrade discharges based on the passage of time or to make an individual eligibility for veterans’ benefits.  Further, although the Board takes racial prejudice seriously there is no evidence to support the applicant’s assertion that his discharge was the result of a racial incident.  

2.  The applicant's separation action was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  By regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  

3.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and reveals an extensive disciplinary history including a GCM conviction and his acceptance of NJP on three separate occasions.  It also shows he failed to respond to extensive counseling while in the retraining brigade.  This record did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade to an honorable or a general discharge at this late date.  As a result, there is an insufficient evidentiary basis to support granting the 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)                                         AR20110017146



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ABCMR Record of Proceedings (cont)                                         AR20110017146



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