IN THE CASE OF:	  

		BOARD DATE:	 1 July 2014 

		DOCKET NUMBER:  AR20130017954 


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:

	a.  his general discharge be upgraded to honorable; and

	b.  his narrative reason for separation be changed to "Convenience of the Government."  

2.  The applicant states:

	a.  he believes his discharge is excessive for minor infractions and the real reason they wanted him out was because he was the last black man in the unit.  The other three had been discharged.

	b.  he had injured his knee and he could not contribute to the readiness of the unit.  He requested a Medical Evaluation Board (MEB).

	c.  he was approached by his first sergeant and offered a deal.  The implication was he better take it because his life in the military would change and not for the better.

	d.  he was having trouble with his knee so he signed to get out.

	e.  he believes the injustice is that the first sergeant lied to him when he told him he would not get anything better.

f.   he subsequently enlisted in the Army National Guard (ARNG) and was mobilized for Operation Noble Eagle.  He served honorably.

3.  The applicant provides copies of his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 4 June 1993 and 11 February 2004
* Service medical records
* ARNG enlistment documents and waiver

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 (RA) on 9 October 1991 for a period of 3 years and 15 weeks.  He completed his training and was awarded military occupational specialty 13B (cannon crewmember).

3.  Between July and December 1992, nonjudicial punishment (NJP) was imposed against him on three occasions for failing to obey a lawful order.

4.  He was counseled for:

* a negative attitude and disregard for military discipline and order
* indebtedness and failure to maintain accountability of his funds
* failure to follow orders
* failure to inform his chain of command of an injury
* "unsoldierly" conduct, lack of discipline, military appearance, and pending disciplinary action
* failure to maintain equipment
* disobeying a lawful order and dereliction of duty
* unsecure wall locker
* failure to prepare for an inspection
5.  On 29 April 1993, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct (minor disciplinary infractions).  The unit commander cited the applicant's three NJPs and his failure to obey several orders.

6.  On 29 April 1993, he consulted with counsel, waived his rights, including his right to a board, and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also elected not to submit a statement in his own behalf.

7.  On 4 May 1993, the separation authority approved the recommendation for discharge and directed the issuance of a General Discharge Certificate.

8.  On 4 June 1993, he was discharged accordingly.  He completed 1 year, 2 months, and 26 days of creditable active service.

9.  His DD Form 214 for the period ending 4 June 1993 shows in:

* item 25 (Separation Authority) - Army Regulation 635-200, paragraph 
14-12a
* item 26 (Separation Code) - JKN
* item 28 (Narrative Reason for Separation) – Misconduct (minor disciplinary infractions)

10.  He provides medical records which show:

* he injured his right knee playing basketball in December 1992
* he had knee surgery in March 1993
* he tripped on a curb in April 1993 and reinjured his knee
* he requested an MEB in May 1993 

11.  He enlisted in the ARNG on an unknown date.  He was ordered to active duty from the ARNG on 30 January 2003 in response to the World Trade Center and Pentagon attacks.  He was released from active duty on 11 February 2004 with an honorable characterization of service.

12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (military or civilian offense), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

14.  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.

15.  Paragraph 4-3 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  SPD Code JKN applies to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12a, by reason of misconduct (minor disciplinary infractions).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was discharged because he was the last black man in the unit and that his first sergeant lied to him.  However, there is no evidence in the available record and he provided no evidence which shows he was the victim of racial discrimination or that his first sergeant lied to him.

2.  He contends he injured his knee and requested an MEB.  It appears he was never referred for physical disability processing; however, even if he had been referred for disability processing, his administrative separation which authorized a characterization of service of under other than honorable conditions would have discontinued that process.  

3.  His record of service included adverse counseling statements and three NJPs.  As a result, this record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.
4.  His administrative discharge was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

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

6.  In view of the foregoing, there is no basis for granting the applicant an honorable discharge.

7.  His narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of discharge.  Therefore, there is an insufficient evidentiary basis for amending the narrative reason for separation on his DD Form 214 for the period ending 4 June 1993.

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)                                         AR20130017954



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ABCMR Record of Proceedings (cont)                                         AR20130017954



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