IN THE CASE OF:	  

		BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110021599 


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 undesirable discharge to a general discharge.

2.  The applicant states, in effect:

* upon enlisting in the Army in 1973, he was told he would be assigned to Korea
* while at Fort Leonard Wood, MO, attending training, he witnessed a friend being beaten-up by a group of African-American Soldiers
* despite the racial issues at the time, he reported the attack and he was called names, such as rat, informant, and snitch
* as the only witness he was required to testify at the perpetrators court-martial which delayed his assignment to Korea
* after the court-martial process he was used to perform various types of janitorial details and his dream of working as an electrician vanished
* when his orders finally came, he was assigned to Fort Lewis, WA, where he continued to perform menial duties
* he continued to believe the Army would fulfill the promise and send him to Korea, but that did not happen
* he received nonjudicial punishment (NJP) and performed details that had nothing to do with his military occupational specialty (MOS)
* he was injured in a football game, hospitalized, given morphine injections, and sleeping pills
*  he became dependent on drugs and his commander ultimately told him he was unfit for service and initiated separation action against him
* In summary, he was a young, African-American kid who tried to do the right thing; he has waited a long time to seek correction for this injustice 

3.  The applicant did not provide any evidence. 

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 was born on 5 June 1954 and enlisted in the Regular Army (RA) at nearly 19 years of age on 15 January 1973.  His DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows he enlisted for the Continental United States (CONUS) station of choice, Fort Lewis, WA, MOS 51R (Electrician).  

3.  He completed basic combat training at Fort Dix, NJ, and he was reassigned to Fort Leonard Wood, MO, where he completed training and was awarded MOS 51R.

4.  While at Fort Leonard Wood, MO, he accepted NJP under Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 12 to 16 June 1973.

5.  Upon completion of MOS training, he was reassigned to Fort Lewis, WA, as stipulated in his enlistment contract.  He was assigned to Company C, 864th Engineer Battalion (Construction).  While at Fort Lewis, WA, he accepted NJP under the provisions of Article 15 of the UCMJ on/for:

* 3 September 1973, being AWOL from 31 August to 10 September 1973
* 15 November 1973, failing to be at his appointed place of duty at the time prescribed and being AWOL from 12 to 13 November 1973
* 7 January 1974, failing to go to his appointed place of duty at the time prescribed
* 14 May 1974, willfully disobeying a lawful order
* 15 August 1974, failing to his appointed place of duty go at the time prescribed (twice)
* 12 July 1974, wrongfully possessing marijuana
* 18 March 1975, failing to go to his appointed place of duty at the time prescribed

6.  His records reveal an extensive history of negative counseling by members of his chain of command for various infractions, including:

* conflict with members of the platoon
* poor quality of work and shirking
* lateness, failure to report, missing formation
* poor behavior, negative attitude
* oversleeping
* being late to formation
* multiple instances of being absent from his appointed place of duty

7.  His records show he was put in for a rehabilitative transfer on 2 August 1974 which was favorably considered and approved.  Orders were cut but he was in civilian confinement for the charge of theft.  His rehabilitative transfer was rescinded. 

8.  On 26 March 1975, 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 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) due to unfitness (apathy, defective attitude, and inability to expend efforts constructively).  Specifically, the immediate commander cited the applicant's:

* lack of attempts or efforts to meet military standards
* non-response to numerous counseling
* failure of all rehabilitative efforts

9.  On 15 May 1975, the applicant acknowledged he had been notified of the pending separation action against him and he had been advised by counsel of the basis for the contemplated action to separate him for unfitness.  The applicant also waived consideration of his case by a board of officers and a personal appearance before a board of officers.  He further elected not to submit a statement on his own behalf.  He acknowledged that:

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

10.  Subsequent to the applicant’s acknowledgement, his immediate commander initiated separation action against him in accordance with chapter 13 of Army Regulation 635-200 by reason of unfitness, frequent incidents of discreditable nature with military authorities.  He recommended the issuance of an undesirable discharge.

11.  On 29 May 1975, his intermediate and senior commander recommended approval of the discharge action with the issuance of an undesirable discharge.

12.  On 13 June 1975, the separation authority approved the applicant’s discharge under the provisions of chapter 13 of Army Regulation 635-200 and ordered the issuance of an Undesirable Discharge Certificate.  The applicant was discharged accordingly on 20 June 1975.

13.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of chapter 13 of Army Regulation 635-200 with an Under Other Than Honorable Conditions Discharge Certificate.  He completed 2 years, 4 months, and 5 days of creditable active military service and he had 
31 days of lost time.

14.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that Board’s 15-year statute of limitations. 

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided 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 undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge.


	a.  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.

	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's records reveal an extensive history of misconduct that included eight instances of NJP, a civilian arrest, two instances of being AWOL, and an extensive history of negative counseling for misconduct.  He was provided counseling and/or multiple opportunities for rehabilitation by various members of 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.  The reason for discharge and the characterization of service were both proper and equitable.

3.  With respect to his arguments:

	a.  The applicant was nearly 19 years of age when he enlisted in the RA.  He was also between 19 and 21 years of age at the time of his misconduct.  There is no evidence that his misconduct was caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.  

	b.  Contrary to his contention, his enlistment contract did not guarantee him assignment to Korea.  He enlisted under the CONUS station of choice enlistment option and he was assigned to Fort Lewis, WA, as stipulated in his enlistment contract.  No other promises were made to him.


	c.  Although not available for review with this case, his stand in relation to reporting the incident he describes is commendable.  However, his misconduct began during training and spanned throughout his entire period of military service.  

	d.  Contrary to his contention that the military failed to rehabilitate him, the evidence of record shows he was counseled on multiple occasions by his chain of command and underwent multiple rehabilitative efforts, but he failed to become an effective Soldier.

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.  Therefore, he is not entitled to a general or an honorable character of service.

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)                                         AR20110021599



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ABCMR Record of Proceedings (cont)                                         AR20110021599



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