RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 May 2007
	DOCKET NUMBER:  AR20060014184 


	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

Acting Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Michael J. Flynn

Member

Ms. Rose M. Lys

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 a general, or an honorable discharge.

2.  The applicant states, in effect, he was serving in South Korea when he was discharged.  At that time there were very prejudicial and negative attitudes towards blacks.  He states, in effect, he experienced a race riot, segregation, and low or no promotions while he was in the [barracks].

3.  He further states, in effect, that blacks were called monkeys by the Koreans and certain restrictions were placed on blacks that caused them to be railroaded with bad discharges, labels, and being unfairly represented.  He states he served his country for three years and enough time has passed to allow all wounds to heal, so his discharge should be upgraded.

4.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 17 March 1975.  The application submitted in this case was received on  
3 October 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 entered active duty on 15 June 1973.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 16E1O (Hawk Fire Control Crewman).

4.  The applicant's records show that he was assigned to A Battery, 1st Battalion, 2nd Air Defense Artillery, South Korea.

5.  On 22 March 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty (morning work call formation).  This is a violation of Article 86 of UCMJ.

6.  On 2 June 1974, the applicant accepted NJP under the provisions of Article 15 of UCMJ for violating a lawful general regulation by purchasing one electric blender without a letter of authorization, an amount in excess of the prescribed limit.  This is a violation of Article 92 of UCMJ.

7.  On 20 September 1974, the applicant accepted NJP under the provisions of Article 15 of UCMJ for being absent without leave (AWOL) from 20-23 June 1974, a violation of Article 86 of UCMJ; having knowledge of a lawful order issued by a commissioned officer, in that he failed to obey the order, a violation of Article 92 of UCMJ; and failing to obey an order from a senior noncommissioned officer, in that he was to report to the tactical site for duty, did, willfully disobey the order.  This is a violation of Article 91 of UCMJ.

8.  The applicant was transferred from A Battery, 1st Battalion, 2nd Air Defense Artillery to D Battery, 1st Battalion, 2nd Air Defense Artillery.  The purpose of the transfer was for rehabilitation.

9.  On 6 November 1974, the applicant received a bar to reenlistment due to his untrainability or unsuitability.  He was unable to conform to the rigid standards of military discipline despite the best efforts of his command to rehabilitate him.

10.  On 18 November 1974, the applicant's commander recommended that the applicant be discharged under the provision of Army Regulation 635-200 (Personnel Separation) Chapter 13, paragraph 13-5a (1) for frequent incidents of a discreditable nature with civil or military authorities and subjecting himself to punitive action under UCMJ.

11.  On 18 November 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated action to accomplish his separation under Army Regulation 635-200 for unfitness.  The applicant requested consideration of his case to be heard by a board of officers, requested a personal appearance before a board of officers, submitted no statement on his own behalf, and requested representation by an appointed counsel.

12.  The applicant acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions is issued to him.  He further understood that, as the result of the issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life.

13.  On 18 November 1974, the applicant’s commander forwarded the recommendation for separation to the Commander of 1st Battalion, 2nd Air Defense Artillery.  Attached to the recommendation was a request for a psychiatric evaluation.

14.  On 29 November 1974, the applicant received a mental status evaluation from mental health services.  In the evaluation they found that the applicant was able to understand the nature of the board proceedings, distinguish right from wrong and to adhere to the right, met medical retention standards, was mentally responsible, and he was not likely to profit from further rehabilitative efforts.  The applicant was psychiatrically cleared for administrative action.

15.  On 18 January 1975, a board of officers was appointed.  On 18 February 1975, the board of officers convened and considered the evidence before it and found that the applicant was unfit for further retention in the military service because of frequent incidents of a discreditable nature with military authorities.

16.  On 28 February 1975, the brigadier general in command of Headquarters, 38th Air Defense Artillery, South Korea, approved the elimination board's findings and recommendation and directed that the applicant be furnished an Undesirable Discharge Certificate.

17.  On 18 March 1975, the applicant was discharged.  The DD Form  
214 he was issued shows he completed a total of 2 years and 29 days of active federal service.  He had accrued a total of 10 days of lost time.

18.  The applicant applied to the Army Discharge Review Board (ADRB).  On  
3 September 1980, the ADRB found that the reason for his discharge was proper and equitable and denied relief.

19.  Army Regulation 635-200 (Personnel Separations), applied to separation for unfitness and unsuitability.  At that time, paragraph 13-5a (1) provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

20.  Army Regulation 635-200 (Personnel Separations), 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

21.  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.

22.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the  
3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his undesirable discharge be upgraded to a general, or an honorable discharge.

2.  The applicant has not submitted any evidence to support his contention that racial factors were the cause of his undesirable discharge.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His numerous acts of misconduct render his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.
4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 September 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
2 September 1983.  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

____mjf__  ___rml___  ___rtd__  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.




__________Richard T. Dunbar_____
          CHAIRPERSON




INDEX

CASE ID
AR20060014184
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070503
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.