RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	27 February 2007  
	DOCKET NUMBER:  AR20060008612 


	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. Gerard W. Schwartz

Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, in effect, upgrade of his 1964 undesirable discharge (UD).

2.  The applicant states, in effect, he received a bad conduct discharge in 1964 for assault for being called a nigger when he was stationed in Germany and he lost control.  In 1962, 1963, 1964, and 1965, there was a lot of racial unjustice in the military and he could not handle that and be a good Soldier also.  He also states that everyone knows that there was a lot of racial hatred and prejudice in 1962, throughout that era, there were a lot of names called and there was unequal justice.  The African male received most of the injustice going on mainly because the civil rights bill was not passed yet.  The African-Americans received the short end of the stick most of the time.  That impaired his ability to serve.

3.  The applicant provides a copy of a memorandum from the Department of Defense, Discharge Review Project Office, Officer of the Naval Judge Advocate General, Alexandria, Virginia, in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 July 1964, the date of his separation from active duty.  The application submitted in this case is dated 6 June 2006.

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 limitations 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 show that he enlisted in the Regular Army, under another name, on 25 May 1962, for 3 years.  He was convicted by court-martial on 4 occasions for failure to go at the time prescribed to his appointed place of duty, willfully and wrongfully breaking a shop window, unlawfully striking a German national, and assault with a dangerous weapon.  He received two non-judicial punishments for dereliction in the performance of his duty and disobeying a lawful order.

4.  On 12 June 1964, the applicant's commander recommended he be discharged from the military service under the provisions of Army Regulation 635-208.  

5.  The applicant was discharged on 31 July 1964, under the provisions of Army Regulation 635-208, for frequent incidents of a discreditable nature and was issued an UD.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows 62 days lost time.

6.  The applicant was inducted in the Army of the United States under another name, on 7 May 1969.  His record of induction indicates no prior service.  His records do not indicate that the applicant contested his induction at that time nor did he notify anyone at that time that he had previously been in the military service under another name.  

7.  On 25 August 1969, the applicant was dropped from the rolls (DFR) as a deserter.  He was returned to duty on 6 December 1969.  

8.  In a Charge Sheet, dated 4 August 1971, the applicant was charged with being absent from his organization from on or about 27 July 1969 to on or about 6 December 1969, from 2 January 1970 to 6 February 1970, and from 20 March 1970 to 30 June 1971.

9.  On 20 March 1970, the applicant's commander recommended the applicant be released from active duty based on erroneous induction.  The commander stated that the Federal Bureau of Investigation Division, on request from this officer, compared the fingerprints of the name the applicant enlisted under in 1962 and the name he was inducted under in 1969.  The results showed that the person was one and the same person.  

10.  On 16 April 1970, the Assistant Adjutant General, disapproved the recommendation to release the applicant for erroneous induction.  He stated that the applicant was inducted under another name and failed to indicate his prior service.  Administrative separation of the Soldier would be appropriate only under the provisions of paragraph 20, Army Regulation 635-206, based on fraudulent concealment of prior separation from the Army under conditions barring reentry.

11.  On 16 September 1971, the appropriate separation authority approved the discharge under the provisions of Army Regulation 635-206, by reason of fraudulent entry and directed reduction to the lowest enlisted grade and the issuance of an UD Certificate.  

12.  The applicant was discharged on 16 September 1971, in pay grade E-1, under the provisions of Army Regulation 635-206.  His character of service was shown as under conditions other than honorable and he was issued an UD certificate.  He was credited with 8 months and 29 days net service, 518 days lost time, and 68 days lost subsequent to normal expiration of term of service.

13.  On 10 May 1984, the applicant applied to the ABCMR requesting upgrade of his UDs to honorable.  On 16 October 1985, the Board denied the request and requested the applicant be advised of his right to apply to the Army Discharge Review Board (ADRB) before 16 September 1986, for consideration to upgrade the UD issued to him on 16 September 1971.

14.  The applicant submitted a memorandum from the Department of Defense, Discharge Review Project Office, Office of the Naval Judge Advocate General, dated 22 January 1997, announcing to all former service members who received a less than fully honorable administrative discharge from the inactive service that pursuant to a class action lawsuit and subsequent settlement agreement, discharge upgrades may now be provided to former service members who received: (a) a less than fully honorable administrative discharge (such as a "general," "UD," or "under honorable conditions"); (b) while in the inactive Reserves; (c) after 19 April 1971, (or such a discharge was reviewed by the ADRB or the ABCMR after that date); and their discharge had not already been upgraded to fully honorable.  There is no evidence the applicant applied for an upgrade of his UD pursuant to that announcement.

15.  There is no evidence of record that the applicant applied for a discharge upgrade to the ADRB before 16 September 1986 or within its 15-year statute of limitations.

16.  Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness (misconduct/repeated offenses not warranting court-martial).  Action to separate an individual was to be taken when, in the judgment of the commander, it was clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted, an UD was normally issued.

17.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.
18.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge as 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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his 1964 UD.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.  

2.  The applicant's contentions have been noted; however the applicant’s records show he was punished twice under Article 15 and convicted by court-martial on 4 occasions.  On 12 June 1964, the applicant's commander recommended his discharge.  He was discharged under the provisions of Army Regulation 635-208 and issued an UD.  The applicant’s misconduct thus diminished the quality of his service below that meriting a fully honorable discharge or general discharge.  

3.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

4.  The applicant's records do not show he applied to the ADRB within the 15 years from the date of his discharge.  His records also do not show he applied to the Department of Defense, Discharge Review Project Office, Office of the Naval Judge Advocate General, concerning an upgrade of his 1964 UD.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 July 1964; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 July 1967.  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

__LD____  __LB____  _TSK___  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.




      ______
                CHAIRPERSON




INDEX

CASE ID
AR20060008612
SUFFIX

RECON

DATE BOARDED
20070227
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19640731
DISCHARGE AUTHORITY
AR635-208
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
A70
2.

3.

4.

5.

6.



ABCMR Record of Proceedings (cont)                                         AR20060008612


6


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508