IN THE CASE OF:	  

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120002151 


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 an honorable discharge.

2.  The applicant states he experienced extreme racial injustice by both officers and fellow Soldiers, including physical beatings and severe abuse that resulted in long-term and ongoing psychological and emotional damage.

3.  The applicant provides a Bert Nash Community Mental Health Center Authorization for Release of Protected Health Information, dated 27 January 2012 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 enlisted in the Regular Army on 22 June 1976.  He completed training and he was awarded military occupational specialty 76D (Materiel Supplyman).

3.  On 3 January 1977, he failed to report to the 21st Replacement Detachment, Germany, and he was accordingly reported in an absent without leave (AWOL) status.  He returned to military control on 19 January 1977.

4.  On 21 January 1977, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 3 to 19 January 1977.

5.  He served in Germany from 12 February 1977 to on or about 15 February 1978.  While in Germany, he accepted NJP under the provisions of Article 15, UCMJ on:

* 15 April 1977, for being disrespectful in language to a superior noncommissioned officer on 26 March 1977
* 22 April 1977, for willfully disobeying a lawful order from a superior commissioned officer on 21 April 1977
* 11 October 1977, for failing to go at the time prescribed to his appointed place of duty on 26 September 1977
* 3 December 1977, for assaulting two Soldiers on two separate instances on 25 October 1977
* 20 January 1978, for being AWOL on 10 January 1978 and for violating a lawful general regulation on 19 October 1977

6.  On 20 December 1977, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
chapter 13-5(1), by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities. 

7.  On 13 January 1978, he consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and waived personal appearance before a board of officers.  He indicated:

* he understood he could expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued to him
* he understood, as a result of the issuance of a discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under Federal and State laws
* he elected not to submit a statement in his own behalf

8.  He also underwent a mental status evaluation in connection with his separation.  The evaluation shows he had no mental illness; he was mentally responsible; he was able to distinguish right from wrong; he was able to adhere to the right; he had the mental capacity to understand and participate in board proceedings; and he met retention standards of Army Regulation 40-501 (Standards of Medical Fitness).

9.  Subsequent to the applicant's acknowledgement, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13-5a(1), for misconduct.  The immediate commander stated the applicant had established a pattern of shirking and unacceptable behavior.  He demonstrated disregard for military authority and continually indicated he had no desire to return to duty.  He resented authority and he resisted all attempts for rehabilitation.  

10.  Consistent with the favorable recommendation for discharge by the applicant's immediate, intermediate, and senior commanders, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of misconduct and the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  Accordingly, the applicant was discharged on 16 February 1978.

11.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14 (chapter 13-5 had been renamed as chapter 14), for misconduct with a character of service of under other than honorable conditions. This form further shows he completed 1 year, 7 months, and 8 days of total active service with 17 days of time lost.

12.  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.  

13.  He provides a hospital discharge summary report related to diabetes.

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

	a.  Chapter 13-5 (renamed as chapter 14) established policy and procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

	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's record reveals a history of misconduct that includes multiple instances of NJP.  He was provided with 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.  His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

3.  There is no evidence of record and the applicant did not provide any evidence that supports his contention of extreme racial injustice by both officers and fellow 
Soldiers, including physical beatings and severe abuse that resulted in long-term and ongoing psychological and emotional damage.  His commander indicated that he (the applicant) resented authority and he resisted all attempts for rehabilitation.  Additionally, he underwent a mental status evaluation in connection with his separation that found he met retention standards.
4.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general 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)                                         AR20120002151



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ABCMR Record of Proceedings (cont)                                         AR20120002151



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