IN THE CASE OF:	  

		BOARD DATE:	 10 April 2014 

		DOCKET NUMBER:  AR20130013451 


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 that his under other than honorable conditions discharge be upgraded to general, under honorable conditions.  

2.  The applicant states he was never absent without leave (AWOL).  He contends that he had a medical appointment that morning and his command knew it.  He further contends that he suffered racial harassment during his time in the Army.  

3.  The applicant provides no additional 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 enlisted in the Regular Army on 28 November 1973.  He was reassigned to Fort Kobbe, Canal Zone, Panama upon completion of initial entry training.  

3.  On 2 April 1975, while stationed at Fort Kobbe, Canal Zone, he accepted nonjudicial punishment (NJP) for striking another Soldier with a closed fist.

4.  On 20 August 1975, he was found guilty by a special court-martial of:

	a.  being absent from his place of duty without authority during the period 
2-5 July 1975;

	b.  failing to go at the time prescribed to his appointed place of duty;

	c.  disobeying a lawful order from his superior commissioned officer; and

	d.  communicating a threat to his superior noncommissioned officer.

5.  He was reassigned and arrived at Fort Carson, CO on or around 
10 December 1975.  

6.  He accepted NJP on the following dates:

	a.  19 March 1976, for failing to go at the time prescribed to his appointed place of duty;

	b.  8 July 1976, for failing to go at the time prescribed to his appointed place of duty; and

	c.  27 September 1976, for four specifications of being absent from his place of duty without authority.

7.  The applicant's military records include documentation indicating he was a target of racial harassment on 9 July 1976 while stationed at Fort Carson, CO.

8.  On 20 October 1976, the applicant was advised by his unit commander that he was recommending his separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, because of frequent incidents of a discreditable nature.  

9.  The applicant consulted with legal counsel and was advised of the basis for the proposed separation action.  He was also advised of his right to request consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He elected consideration of his case by a board of officers.  He also acknowledged he understood that as a result of the 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.

10.  On 21 January 1977, he was found guilty by a special court-martial of three specifications of failing to go at the time prescribed to his appointed place of duty.

11.  On 7 February 1977, a board of officers convened to determine whether the applicant should be discharged before the expiration of his term of service because of misconduct.  The board concluded the applicant was undesirable for further retention in the military service because of habits and traits of character manifested by repeated commission of petty offenses and because of his frequent incidents of a discreditable nature with military authorities.  The board recommended discharge for misconduct and issuance of an "Other Than Honorable Discharge Certificate."  

12.  On 28 February 1977, the appropriate authority approved the recommendations of the board of officers and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 9 March 1977, he was discharged accordingly.  His DD Form 214 (Report of Separation for Active Duty shows he completed 2 years, 11 months, and 26 days of creditable active service and that he accrued 107 days of lost time.  

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

14.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  

	a.  Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 

	b.  Paragraph 3-7b states 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 contention that his discharge should be upgraded to general, under honorable conditions has been carefully considered.

2.  The evidence of record confirms his separation processing for unfitness was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

3.  His disciplinary history includes NJP on four occasions, two court-martial convictions, and 107 days of lost time.  Based on this record of indiscipline, his overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

4.  He contends he suffered racial discrimination while in the service.  His record includes documentation indicating he was a target of racial harassment on 9 July 1976 while at Fort Carson, CO.  However, his indiscipline commenced well before this incident, while at a different duty station, and there is no evidence that racial discrimination/harassment was the proximate cause of his repeated acts of misconduct.  

5.  Based on the foregoing, there is no basis to grant 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)                                         AR20130013451



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ABCMR Record of Proceedings (cont)                                         AR20130013451



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