IN THE CASE OF:	  

		BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140008393 


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 his general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he was subjected to racial discrimination by multiple peers who were supposed to be role models, which caused him much stress and to act out.

3.  The applicant provides:

* Burke County Veterans Services Letter
* 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 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 20 March 1980.  He successfully completed his initial entry training and was awarded military occupational specialty 19D (Cavalry Scout).

3.  On 9 September 1980, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for being disrespectful in language toward his superior noncommissioned officer.  He did not appeal this punishment.

4.  His record also shows he was formally counseled eight times during the period 3 December 1980 to 24 July 1981 for a myriad of disciplinary infractions that included:

* disobeying lawful orders
* failure to report to training in proper uniform
* repeatedly failing to make formations
* being disrespectful in his communication
* mediocre duty performance

5.  On 23 July 1981, his unit commander notified the applicant of his intent to initiate action to separate him under the provisions of the Expeditious Discharge Program (EDP) and that he was recommending the applicant receive a GD.  The unit commander cited the applicant’s inability to adapt to military service, numerous counseling sessions, placement in the School of the Soldier, and his record of NJP as the basis for the action.

6.  The unit commander informed the applicant that the final decision on his separation and the character of service he would receive rested with the separation authority.

7.  On 28 July 1981, the applicant acknowledged the notification in writing and indicated that he voluntarily consented to this discharge.  He also indicated he was submitting a statement in his own behalf; however, this statement is not available for review.

8.  On 30 July 1981, the separation authority approved the applicant’s separation under the provisions of the EDP and directed he receive a GD.  On 7 August 1981, the applicant was discharged from the Army accordingly.

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of paragraph 5-31h(2), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of "Expeditious-Failure to maintain acceptable standards for retention." It also shows he completed 1 year, 4 months, and 18 days of creditable military service and that he received a GD.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.  His record also fails to show any evidence of discrimination against him by anyone or that he addressed this claim while on active duty.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, paragraph 5-31, then in effect, provided the policy and outlined the procedures for separating individuals under the EDP.  The EDP provided for the separation of Soldiers who demonstrated that they could not or would not meet acceptable standards required of enlisted personnel.  An HD or GD could be issued under this program.

12.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his GD should be upgraded to an HD because he was racially discriminated against while on active duty.  His record does not include and he failed to provide any evidence to support this claim.

2.  The evidence of record confirms his separation processing under the provisions of the EDP was accomplished in accordance with the applicable regulation and he voluntarily consented to the discharge.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant's record reveals a disciplinary history that clearly diminished the quality of his service below that meriting a fully honorable discharge.  Therefore, absent any evidence of error or injustice, there is an insufficient evidentiary basis to support an upgrade of his discharge at this late date.

4.  In view of the foregoing, the applicant's request should be denied.



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)                                         AR20140008393





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ABCMR Record of Proceedings (cont)                                         AR20140008393



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