IN THE CASE OF:	  

		BOARD DATE:	  10 February 2015

		DOCKET NUMBER:  AR20140011131 


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 discharge, from an under honorable conditions (general) discharge to an honorable discharge.

2.  The applicant states:

	a.  His separation from the military was grossly unjust and racially motivated.

	b.  He joined the Army with big hopes and dreams of making the military a career.  He admits that he was young and a little wild but he had discipline.  He was ready for adventure and he wanted to be a good Soldier and serve his country to the best of his abilities.-

	c.  His military career was cut short by an incident that happened while he was assigned to Fort Jackson, South Carolina.  He was the subject of racial and verbal abuse from a staff sergeant (SSG).  After he reported the SSG to the company commander, the harassment got worse.

	d.  He started drinking and he even started having anxiety attacks.  He could not sleep and he was afraid all the time.

	e.  One day, he was playing around with another Soldier in his barracks room. It was a friendly competition to see who could kick the highest above the door since they were both in a martial arts class.  On the third kick, he actually kicked the door breaking the lock and the door opened.  The same SSG was on charge of quarters (CQ) duty and he proceeded to make a big deal out of a totally innocent accident.  His friend also turned on him and lied about what had really happened.
	
	f.  Shortly after, he was standing in front of the company commander facing separation; the same officer who did nothing about the harassment or the verbal and racial abuse he reported to him.

	g.  His commander used that one incident to put him out of the Army.  He feels he received the general discharge in retaliation for reporting the SSG and his commander to the battalion headquarters.

	h.  His military record speaks for itself.  He was never provided counseling.  He has suffered mentally over the years mainly because of the harassment and stress he suffered while in the Army.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation 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 6 April 1973.

3.  He accepted nonjudicial (NJP) punishment on:

	a.  9 January 1974, for being absent from his place of duty without authority for one day;

	b.  29 July 1974, for failing to go at the time prescribed to his appointed place of duty and for reporting to work unshaven;

	c.  19 February 1975, for violating a lawful general regulation by exceeding the maximum speed limit while at Fort Jackson, South Carolina;
	
	d.  9 June 1975, for being absent from his place of duty without authority and for violating a lawful general regulation by exceeding the maximum speed limit while at Fort Jackson, South Carolina; and 

	e.  24 July 1975, for being disorderly in quarters by willfully kicking the lock off the door of another Soldier's barracks room and for leaving his place of duty without authority.

4.  His military records include a statement of counseling that indicates he was counseled almost daily because of his appearance or duty performance.  He was a constant problem to his supervisors due to his attitude and the fact the he did not work unless watched closely.

5.  His records also include a statement of counseling that indicates:

* he required constant supervision on even the most simple job assignment 
* he required constant counseling to keep his uniform and personal appearance up to standards
* he was counseled several times for missing company formation and for being late for work

6.  On 31 July 1975, his commander recommended that he be separated from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a, for unfitness.  The commander based his recommendation on the applicant's habits and traits of characteristics manifested by the commission of frequent incidents of a discreditable nature with military authorities.  His intentional shirking, failure to repair, exceeding the maximum speed limit, and behavior rendering him repeatedly subject to punitive actions gave much doubt for improvement.

7.  On 1 August 1975, the applicant consulted with legal counsel and he was advised of the basis for the proposed separation action.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He elected not to submit a statement in his own behalf.  He also acknowledged he understood that as a result of the issuance of a general under honorable conditions discharge he might expect to encounter substantial prejudice in civilian life.  He further acknowledged that as a result of issuance of an undesirable discharge 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.
8.  On 27 August 1975, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate.  On 29 August 1975, he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness with his service characterized as under honorable conditions.

9.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.

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

	a.  Chapter 13, in effect at the time, established the policies and provided procedures and guidelines for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  Paragraph 13-5a(1) applied to separation for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

	b.  Paragraph 3-7a states 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's contention that his under honorable conditions (general) discharge should be upgraded to honorable was carefully considered.

2.  He contends he was never counseled; however, the evidence of record shows he was counseled on multiple occasions and he accepted NJP several times prior to his commander recommending his separation for unfitness.  Therefore, this contention is without merit.

3.  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.

4.  His disciplinary history includes NJP on five occasions for several acts of misconduct.  Based on this record of indiscipline, his overall record of service did not support the issuance of a fully honorable discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  He contends he suffered harassment and that his separation was racially motivated; however, he provided no evidence that substantiates his claim that racial discrimination and/or harassment were the proximate cause of his repeated acts of misconduct. 

6.  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)                                         AR20140011131



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ABCMR Record of Proceedings (cont)                                         AR20140011131



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