RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:             OCTOBER 7, 2004
      DOCKET NUMBER:     AR2004102997


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Patrick H. McGann Jr,         |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge be upgraded to an
honorable or a general discharge.  He also requests, in effect, restitution
for the cruel treatment that he received while he was in the Army; a copy
of his lifeguard license; 6 months worth of back pay; and a copy of a
certificate of accomplishment that he received for a 6-month course that he
completed in plumbing.

2.  The applicant states that he was performing the duties of a lifeguard
at McDill Field Air Force Base and that on the weekends he had a special
pass to go into town where he played in a jazz band on Friday and Saturday
nights.  He states he returned to the Air Force early one Sunday morning
around 0500 hours and his superior told him to go and take a nap because he
did not have to be on duty until 1300 hours.  He states that the supervisor
said that he would wake him at 1215 hours, which would give him ample time
to perform his duties as a lifeguard.  He states that he awakened on time
and that after his lifeguard license was taken away from him, he found out
that his superior had slipped off the base at approximately 2200 hours for
a date with his (the applicant’s) girlfriend.

3.  The applicant goes on to state that later that same year he was on
guard duty and that after a while he became weak and dizzy.  He states that
everything in front of him started spinning around in circles and that he
tried to call the corporal of the guard; however, no sound came from his
mouth.  He states that the next thing that he remembers is being awakened
by a bright flashing light and someone shaking him.  He states that he
tried to explain to the officer of the day who was “white” and that during
that time racial discrimination still existed in the United States Armed
Forces.  He states that he was charged with leaving his post and was court-
martialed and later released on good behavior.  He states that he lost his
pay for 6 months; that he was supposed to be discharged in January 1950,
instead he was kept in his service until June 1950; and that he was
discharged with a section eight.  He states that he did not deserve such
cruel treatment; that he was discharged 50 years ago and that he has not
been in any trouble since that time.

4.  The applicant provides in support of his application, a picture of the
”McDill Field Air Force Base All Negro Band”.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 6 June 1950.  The application submitted in this case is dated
27 August 2003.
2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's military records were lost or destroyed in the National
Personnel Records Center fire of 1973.  Information herein was obtained
from his Report of Separation (DD Form 214).

4.  After completing 2 years, 6 months and 28 days of total active service,
he reenlisted in the Army on 30 January 1947, in Dearborn, Michigan.

5.  The facts and circumstances pertaining to the applicant's discharge are
not on file.  The DD Form 214 indicates that the applicant was discharged
on 6 June 1950, under the provisions of Army Regulation 615-368, for
unfitness and issued an undesirable discharge.  His DD Form 214 further
indicates that he had completed 5 year, 5 months and 25 days total net
service and that he had 140 days of lost time.

6.  There is no evidence of record that shows that the applicant ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

7.  Army Regulation 615-368, in effect at the time, set forth the basic
authority for the separation of enlisted personnel by reason of unfitness.
That regulation provided for the discharge of individuals who had
demonstrated their unfitness by giving evidence of undesirable habits and
traits of character manifested by misconduct.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.




2.  His contentions have been noted by the Board.  However, there is no
evidence in the available record nor has the applicant submitted any
evidence to substantiate his contention that he was unjustly discharged or
that he was unfairly treated and discriminated against because of his race
or that he is entitled to any restitution based on the alleged
discrimination.

3.  Additionally, the applicant’s request for copies of documentation that
may have been maintained in his official record is an administrative matter
and inasmuch as the applicant’s records were lost in the National Personnel
Records Center fire of 1973, it is believed that the requested
documentation were also lost in that fire.

4.  The available evidence does show that he had 140 days of lost time and
that he was furnished an undesirable discharge due to unfitness.  In the
absence of evidence to the contrary, it must be presumed that what the Army
did in his case was correct.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 June 1950; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 5 June 1953.  However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

wtm_____  pms_____  pm_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.
2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ___Walter T. Morrison__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102997                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041007                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19500606                                |
|DISCHARGE AUTHORITY     |AR 615-368                              |
|DISCHARGE REASON        |583/UNFITNESS                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  583  |144.5000.0000/UNFITNESS                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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