IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110023647 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states he had a great deal of mental problems and he was not getting any help because he was a young Negro male.

3.  The applicant provides:

* A self-authored statement
* Letter from a Member of Congress to the Army Review Boards Agency (ARBA), dated 16 November 2011
* A Privacy Release Form, dated 7 November 2011
* DD Form 214 (Certificate of Release or Discharge from Active Duty)  

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 31 January 1960.  He enlisted in the Regular Army on 16 October 1979 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 11B (infantryman).

3.  On 12 November 1980, he was convicted by a summary court-martial of leaving his place of duty, failing to go at the time prescribed to his appointed place of duty, and assault (two specifications).  He was sentenced to reduction to private (PV1)/E-1, forfeiture of $330.00 pay, and confinement at hard labor for
30 days.

4.  A résumé of conduct, attitude, performance and discreditable acts, shows the applicant's record of unpunished indiscipline included:

* disobeying lawful orders
* unsatisfactory behavioral rating scale
* dereliction of duty
* disobeying orders
* failure to repair
* shirking
* attempting to deceive cadre
* failed barracks inspections
* failure to follow instructions 

5.  On 30 January 1981, the applicant's unit commander initiated action to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-33b(1), for misconduct due to frequent involvement in incidents of a discreditable nature with civil or military authorities.

6.  On 3 February 1981, after consulting with counsel, the applicant waived consideration of his case by a board of officers, waived a personal appearance, and elected not to submit a statement on his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued.  He further understood that as the result of issuance of a discharge under conditions other than honorable he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.  He elected not to submit a statement on his own behalf.


7.  On 4 March 1981, the separation authority approved the recommendation for discharge and directed the applicant be furnished an under other than honorable conditions discharge.

8.  On 6 March 1981, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct due to frequent incidents of a discreditable nature with civil or military authorities, with an under other than honorable conditions discharge.  He completed 1 year, 3 months, and 28 days of creditable active service with 23 days of time lost.

9.  There is no evidence of record and he did not provide any evidence that shows he was diagnosed with any mental problems or that he was racially discriminated against prior to his discharge on 6 March 1981.

10.  On 21 June 1983, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.

	a.  Paragraph 14-33b(1) provided for discharge due to frequent incidents of a discreditable nature with civil or military authorities.  A discharge under other than honorable conditions was normally considered appropriate for a Soldier discharged under provision of regulation.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

	b.  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.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was young.  However, age is not a sufficiently mitigating factor.  He was almost 20 years old when he enlisted and he 


successfully completed training.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military term of service.

2.  Although he contends he had mental problems and he did not receive any help because he is a Negro, there is no evidence that shows he was having mental problems in 1981 that interfered with his ability to perform his military duties or that they were the underlying cause for the misconduct that led to his discharge.  In addition, there is no evidence of record which shows he was the victim of racial discrimination.

3.  His record of service included one summary court-martial and numerous acts of indiscipline.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he failed to do so.

5.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

6.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110023647



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ABCMR Record of Proceedings (cont)                                         AR20110023647



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