IN THE CASE OF:	  

		BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20150000634 


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 (GD) to an honorable discharge (HD).

2.  The applicant states:

     a.  He was wrongfully discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13.  He performed his duties on a daily basis to the utmost of his abilities and beyond while enduring hardships that no enlisted man should have had to suffer.

     b.  He was forced to endure physical and mental abuse during a 16 to 17 month period during his time in the U.S. Army.  The abuse he suffered eventually resulted in his inability to maintain satisfactory performance.  In one incident he was reported for sleeping on guard duty.

     c.  He was not allowed to occupy his assigned living quarters because of racial violence.  He was in constant fear of his safety.  He did not get proper sleep or an opportunity for proper hygiene.  He was forced to live off base in the forest surrounding the base.  He still performed his duties on the night in question.

     d.  He was hiding in a vehicle situated in the shadows while on guard duty.  He noticed an individual in uniform walking adjacent to the west fence of the motor pool for 40 yards towards the north and then turned west at the end of a civilian dormitory.  He disregarded him as a threat.  He was written up for sleeping on guard duty and placed on restriction for two weeks.  The individual he saw was the duty officer making rounds.  He had never seen him make rounds before.  He was told that he was to maintain a certain position while on guard duty so he could be seen.  The duty officer never called out to inform him that he was doing a check.  Nothing like that had ever occurred before that night. 

     e.   That incident prompted him to fight in order to have it removed from his record as a false allegation.  He asked to speak with an officer regarding the incident and he was sent to the battalion headquarters.  He spoke with a major who told him that he would be going home soon anyway after he requested a transfer.

     f.  He was never afforded the opportunity to be transferred or to reenlist.  He received orders to pack his things and he was going to South Carolina.  After he got there he was informed that he was being discharged.  This was unfair and unjustified in light of the torture he endured at the hands of fellow Soldiers.  He suffered and never said anything for a long time.   

3.  The applicant provides:

* a DD Form 214 (Report of Separation from Active Duty)
* a self-authored statement
* a Certificate of Recognition

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 25 February 1977.  After completing initial entry training, he was awarded military occupational specialty 11H (Heavy Anti-Armor Weapons Crewman).

3.  Records show he received counseling on several occasions for:
* failure to obey orders
* being late to formation
* missing work
* leaving his appointed place of duty
* breaking restriction
* missing formation
* indebtness 

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 26 October 1978, for failure to go to appointed place of duty
* 30 October 1978, for failure to go to prescribed place of duty
* 8 December 1978, for being absent without leave

5.  On 14 May 1979, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 13, paragraph 13-4c for unsuitability.  He acknowledged receipt.  

6.  On 15 May 1979, he was advised by counsel of the basis for the contemplated action to separate him for unsuitability under the provisions of Army Regulation 635-200.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and he elected not to submit a statement in his own behalf.  He further indicated that he understood that he might expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him.

7.  On 8 August 1979, an authorized official approved his discharge under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-4c and directed the issuance of a General Discharge Certificate.  On 21 August 1979, he was discharged accordingly.

8.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-4c for unsuitability with an under honorable conditions characterization of service.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time set forth the basic authority, established the policy, and prescribed the procedures for separating members for unsuitability (apathy, defective attitude and inability to expend effort constructively).  Members separating under this provision of the regulation could receive either an honorable or a general discharge.  

11.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his GD was carefully considered; however, there was insufficient evidence to support his request.

2.  There is no documentary evidence corroborating his claim that he suffered racial discrimination or that he was physically and mentally abused.   His records reveal a history of misconduct which includes three instances of NJP and negative counseling for various disciplinary infractions.   Accordingly, his immediate commander initiated separation action against him.

3.  His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with his overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

4.  The quality of his service did not meet the standards of acceptable conduct and performance of duty for Army personnel nor was it otherwise so meritorious that any other characterization would be clearly inappropriate.  In view of the foregoing evidence, he is not entitled to 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)                                         AR20150000634





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ABCMR Record of Proceedings (cont)                                         AR20150000634



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