BOARD DATE: 2 September 2010 DOCKET NUMBER: AR20100009600 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 under other than honorable conditions discharge to a general discharge under honorable conditions. 2. The applicant states, in effect, he believes he was neglected by the people and the system. He states he was brought up in a military family and he continued the tradition and by enlisting in the Army. He did well until he arrived at Fort Campbell, KY, where he felt harassed and discriminated against and denied advancement because of his race. His unit barracks was segregated and Soldiers received preferential treatment. He was young at the time and he initially put up with this climate despite the consistent racial slurs by his platoon sergeant. However, when promotion to the next higher grade was based on favoritism he became very angry and it diminished his morale and enthusiasm. The situation worsened after he returned from his brother's funeral. He feels the Army did not treat him well and asks for fairness, compassion, and understanding. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and copies of selected DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)). 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’s records show he was born on 28 March 1957 and he enlisted in the Regular Army at age 20 for a period of 3 years on 13 July 1977. He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 05B (Radio Operator). The highest rank/grade he attained during his military training was private first class/E-3. 3. His records also show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar and the First Class Qualification Badge with Grenade Bar. 4. His records also reveal an extensive history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ as follows: a. On 7 March 1979, for failing to go at the time prescribed to his appointed place of duty (twice). His punishment consisted of a reduction, a forfeiture of pay, extra duty, and restriction (suspended but later vacated). b. On 4 April 1979, for breaking restriction (twice). His punishment consisted of 30 days in the correctional custody facility. c. On 12 June 1979, for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a reduction, a forfeiture of pay, extra duty, and restriction. d. On 3 August 1979, for failing to go at the time prescribed to his appointed place of duty and being disrespectful in language towards a noncommissioned officer (NCO). His punishment consisted to a reduction, a suspended forfeiture of pay, and extra duty. e. On 10 October 1979, for failing to go at the time prescribed to his appointed place of duty (twice). His punishment consisted of a reduction, a suspended forfeiture of pay, and extra duty. 5. His records also reveal a history of negative counseling by various members of his chain of command for several infractions including multiple instances of missing formation, driving without a license, lying to his section chief, being late for his skill test, failure to report, and multiple instances of missing formation. 6. On 10 September 1979, his immediate commander notified him of his intent to initiate separation action against him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) due to misconduct. 7. On 10 September 1979, he acknowledged receipt of the separation notification, consulted with legal counsel, and he was advised of the basis for the contemplated separation action, of the rights available to him, of the effect of any action taken by him in waiving his rights, and of the type of discharge he could receive and its effect on further enlistment or reenlistment. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws. 8. He further elected consideration of his case by a board of officer, personal appearance before a board of officers, and submitted a statement on his own behalf wherein he indicated that he entered the Army under the assumption he would work in his MOS and improve his knowledge but he lost his motivation during the second year. He believed many of the NCOs were not fit to lead and the Army ruined his life. He was tired of regulations and rules and wanted out. 9. On 13 September 1979, he waived consideration of his case by a board of officers. 10. On 15 September 1979, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct. The immediate commander remarked the applicant's character was unsatisfactory. Initially he was given punishment to motivate him to improve. He then spent 30 days in a correctional custody facility to motivate him and re-instill the basic skills of Soldiering to no avail. He needed constant supervision to ensure he completed a mission or even arrive to start it. He continued to be a poor Soldier. He resisted all attempts for rehabilitation and made no effort to improve. His pattern of misconduct was substantial enough to affect immediate elimination. 11. On 12 October 1979, his intermediate commander recommended approval of the discharge action. 12. On 29 October 1979, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate and that he be reduced to the lowest enlisted grade, if applicable. 13. On 2 November 1979, the applicant was accordingly discharged. The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 with an under other than honorable conditions discharge. He had completed a total of 2 years, 2 months, and 3 days of creditable active military service. 14. On 17 May 1983, the Army Discharge Review Board denied his petition for an upgrade of his discharge. 15. 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, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it was 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. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 16. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his under other than honorable conditions discharge should be upgraded to a general discharge. 2. The evidence of record shows the applicant was age 20 at the time of his enlistment and between 21 and 22 years of age at the time he committed his various infractions. However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations or that his extensive history of misconduct was a result of his age. 3. There is no documentary evidence in his records and he did not provide any that shows he suffered discrimination or harassment or that he addressed these issues with his chain of command or through other support channels. 4. The evidence of record shows he committed a series of infractions including multiple instances of failure to report. He resisted all attempts for rehabilitation and made no effort to improve. His pattern of misconduct was substantial enough to affect immediate elimination. Accordingly, his immediate commander initiated separation action against him and he was accordingly discharged. 5. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel. Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge. Therefore, 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) AR20100009600 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont)