IN THE CASE OF:	  

		BOARD DATE:	  8 October 2014

		DOCKET NUMBER:  AR20140002383 


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 an upgrade of his general discharge under honorable conditions to honorable.

2.  The applicant states:

	a.  His overall grievances are with the general discharge he received and the mental and abusive (racial slurs) treatment he endured from the time he returned from his 30-day leave to his discharge.

	b.  He was not given a final physical or dental checkup during his out-processing.  He is suffering from mild pain dysfunction syndrome (muscle pain) and shin splints.  The dental work that was started in basic training has forced his top and bottom rows of teeth to shift and he will lose them soon without attention.

	c.  When he was scheduled to return to Korea from his 30-day leave, his flight was delayed due to weather in Chicago and he was charged with being absent without leave (AWOL).  He was not experienced with airline travel and he made some mistakes.  He accepts full responsibility for his actions.

	d.  He feels he did not deserve the extreme harassment, punishment, and expulsion from the Army.  Although they painted his background in the Army as negative, he feels he served his country with pride and dignity.

	e.  His Article 15 punishment was supposed to last 14 days; this punishment, along with racial slurs, went on for several months instead.  Other company noncommissioned officers agreed that this mistreatment was clearly racially motivated and he should seek counsel.  He suffered these actions solely at the hand of his company first sergeant.  He felt trapped due to the type of discharge he received from the Army.  He was denied all access to benefits for health care and the Montgomery GI Bill to finish school.

	f.  He was 17 years old when he enlisted.  He has been unemployed, denied employment due to his discharge, and homeless off and on for many years.

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 was born on 28 March 1974.  He enlisted in the Regular Army on 25 November 1992 for a period of 4 years.  He completed his training and was awarded military occupational specialty 62J (general construction equipment operator).  He was assigned to Korea on or about 30 April 1993.

3.  Between June 1993 and November 1993, he was counseled for:

* signing in after curfew
* sleeping in class
* maintaining insufficient leave days
* missing formation and not being at his appointed place of duty

4.  In September 1993, nonjudicial punishment (NJP) was imposed against him for failing to obey a lawful order (three specifications) and larceny.

5.  In March 1994, NJP was imposed against him for being AWOL from 1 to 14 January 1994 following the expiration of his authorized holiday leave.

6.  On 13 April 1994, he underwent a separation physical examination and was found be qualified for separation.  Item 44 (Dental) of his Standard Form 88 (Report of Medical Examination) is blank, including the Remarks and Additional Dental Defects and Diseases block.  He reported he was in "good health" on his Standard Form 93 (Report of Medical History), dated 13 April 1994.

7.  On 26 April 1994, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct for serious acts of misconduct.  His unit commander cited:

* the applicant's NJP for being AWOL for 14 days
* his NJP in September 1993
* his numerous adverse counseling statements
* his demonstrated lack of potential for rehabilitation
* his behavior was not within the good order and discipline of the Armed Forces

8.  On 28 April 1994 after consulting with counsel, he waived his rights.  He also acknowledged that he might encounter substantial prejudice in civilian life if he were issued a general discharge.  He elected not to submit a statement in his own behalf.

9.  On 16 May 1994, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

10.  On 26 May 1994, he was discharged under honorable conditions (general) for misconduct under the provisions of Army Regulation 635-200, paragraph 
14-12c.  He completed 1 year, 6 months, and 2 days of creditable active service with 14 days of lost time.

11.  There is no indication in the available records that the applicant petitioned the Army Discharge Review Board for an upgrade within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The regulation states that abuse of illegal drugs is serious misconduct.  The issuance of 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was the victim of racial slurs following his 30-day leave until his discharge.  However, there is no evidence of record and he provided no evidence showing he was the victim of racial discrimination.

2.  He contends he was not given a final physical or dental checkup during his out-processing.  However, the medical evidence shows he underwent a separation physical examination on 13 April 1994 and was found to be qualified for separation.  Although item 44 of his Standard Form 88 is blank, there is no evidence and he provided no evidence showing he did not receive a dental examination prior to his discharge.

3.  Although he claims he was 17 years of age when he enlisted, he was almost 19 years of age when he enlisted and successfully completed training.  Regardless, age is not a sufficiently mitigating factor.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

4.  The applicant contends he has been denied employment due to his general discharge.  However, discharges are not upgraded for the purpose of enhancing employment opportunities.

5.  His administrative separation 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 any concerns; however, he elected not to do so.

6.  The applicant contends he served his country with pride and dignity and did not deserve the extreme harassment, punishment, and expulsion from the Army following his 14-day period of AWOL.  However, his record of service included NJP and adverse counseling statements prior to departing on holiday leave.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

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 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)                                         AR20140002383



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ABCMR Record of Proceedings (cont)                                         AR20140002383



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