IN THE CASE OF:	  

		BOARD DATE:	  7 May 2013

		DOCKET NUMBER:  AR20120019501 


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 under honorable conditions (general) discharge.

2.  The applicant states it has been over 32 years since his life was ruined because of racial prejudices that were highly prevalent in the Army at the time.  He goes on to state he joined the Army twice and both times it was a nightmare.  He continues by stating that during his first enlistment he pushed a gay lieutenant and the lieutenant slapped him and put him out of the Army.  On his second enlistment there was discrimination across the board by whites.  He also states his discharge has stopped him from doing anything to succeed in life.

3.  The applicant provides:

* a self-authored letter to the Army Board for Correction of Military Records (ABCMR), dated 9 October 2012
* a self-authored letter to the Department of Veterans Affairs (VA) Regional Office and Insurance Center (VAROIC), Philadelphia, PA, dated 1 October 2012
* his 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 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 initially enlisted in the Regular Army (RA) with a moral waiver on 3 September 1976 for a period of 3 years, training as an infantryman, and assignment to the 3rd Infantry Division in Germany.  He completed his training and was transferred to Germany for assignment to an infantry company in Aschaffenburg.

3.  The specific facts and circumstances surrounding his first administrative discharge are not present in the available records.  However, his record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on at least three occasions for misconduct including multiple incidents of failure to go at the time prescribed to his appointed place of duty, assaulting another Soldier with his rifle, multiple incidents of disobeying lawful orders from noncommissioned officers (NCOs), multiple incidents of disrespect towards NCOs and commissioned officers, and being drunk on duty.

4.  On 16 May 1977, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel, chapter 5 (Expeditious Discharge Program) by reason of failing to maintain acceptable standards for retention.  He was issued a general discharge.  He completed 8 months and
14 days of net active service during this period with a reentry eligibility (RE) code of RE-3.

5.  On 1 May 1979, he enlisted in RA with an RE code waiver.  He enlisted for a period of 3 years, training as a cavalry scout, and assignment to Europe.  He completed his training at Fort Knox, KY and he was transferred to Germany on 20 August 1979 for assignment to a cavalry troop.

6.  On 1 July 1980, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) for 5 days, three specifications of failing to go at the time prescribed to his appointed place of duty, and one specification of disobeying a lawful command.  He was sentenced to confinement at hard labor for 30 days a forfeiture of $250.00 pay per month for one month.
7.  On 17 July 1980, he was transferred to the U.S. Army Retraining Brigade at Fort Riley, KS to serve his sentence to confinement.

8.  On 14 August 1980, NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty, being disrespectful in language towards a superior NCO, disobeying a lawful order from an NCO, and being absent from his place of duty without authority.

9.  The specific facts and circumstances surrounding his second administrative discharge are not present in the available records; however, his record contains a duly-authenticated DD Form 214 that shows on 25 September 1980, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b for misconduct based on his frequent involvement in incidents of a discreditable nature.  He was issued an under other than honorable conditions discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	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.  In the absence of evidence to the contrary, it must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.
2.  Accordingly, his discharge appropriately characterizes his otherwise undistinguished record of service during the period in question.

3.  The applicant’s contentions have been noted; however, he has submitted no evidence to support his contentions and the fact that he wants to obtain benefits or improve his station in life is not sufficiently mitigating to warrant an upgrade of his discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

5.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general dischargd.

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)                                         AR20120019501



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ABCMR Record of Proceedings (cont)                                         AR20120019501



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