RECORD OF PROCEEDINGS


	IN THE CASE OF:    


	BOARD DATE:	  22 April 2008
	DOCKET NUMBER:  AR20080000659 


	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.




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 the character of service of his discharge.

2.  The applicant states, in effect, that during his service in the U.S. Army he was assigned to the post hospital at Fort Ord, California and he encountered racial prejudice from the nursing staff, as well as from employees at other facilities on post.  The applicant also states that he was denied equal opportunities to work in the hospital and develop into becoming a better qualified and proficient Soldier.  The applicant adds that the racial attitude being perpetrated at that time was unjust and demeaning against minorities, which actually led to a race riot on post. The applicant further states, in effect, as a result of the blatant prejudiced attitudes and race baiting, he became confused, depressed, and angry.  The applicant acknowledges he received a couple of Article 15s, but asserts that none of the infractions were serious enough to warrant a summary court-martial, or a court-martial of any kind.  The applicant adds that he never received a court-martial, he was unjustly discharged from the U.S. Army, and did not deserve a discharge under other than honorable conditions.  The applicant concludes by stating his Undesirable Discharge was unfair, unwarranted, and unjust and that he has suffered a life of job discrimination and a fair opportunity to advance in our society.

3.  The applicant provides a self-authored statement, dated 6 December 2007.

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 military service records show that he was inducted into the U.S. Army and entered active duty on 14 July 1970.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 91A (Medical Corpsman).

3.  The applicant's military service records contain a copy of a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 17 August 1970.  This document shows that non-judicial punishment was imposed by the company commander against the applicant, on or about 1930 hours, 16 August 1970, without authority, for breaking the limits of the Post Privileges (i.e., the boundaries of Fort Dix, New Jersey Reservation) by entering Wrightstown, New Jersey.  The punishment imposed was forfeiture of $20.00 for 1 month, 14 days restriction to the company area, and 14 days extra duty to run concurrently with the restriction.

4.  The applicant’s military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS [Expiration Term of Service]) of the DA Form 20 shows the applicant was absent without leave (AWOL) for
15 days from 22 December 1970 through 6 January 1971.  Item 38 (Record of Assignments) shows, in pertinent part, the applicant was assigned to Medical Company, U.S. Army Medical Department Activity, Fort Ord, California, effective 8 January 1971.  

5.  The applicant's military service records contain a copy of a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 8 January 1971.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about 23 December 1970, without authority, absenting himself from his unit, to wit: Medical Company, U.S. Army Medical Department Activity, Fort Ord, California, and remaining so absent until on or about 5 January 1971.  This document shows that the applicant acknowledged receipt of the Article 15, but declined to submit matters in extenuation, mitigation or defense.  The punishment imposed was reduction to the grade of E-1, forfeiture of $15.00 for 1 month, and 14 days extra duty.

6.  The applicant's military service records contain a copy of a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 14 April 1971.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on 3 separate occasions (i.e., on or about 2400 hours, 7 April 1971; on or about 2400 hours, 9 April 1971; and on or about 0100 hours, 10 April 1971), without authority, absenting himself from his place of duty at which he was required to be, to wit:  Ward C-2, U.S. Army Medical Department Activity, Fort Ord, California. This document shows that the applicant acknowledged receipt of the Article 15, but declined to submit matters in extenuation, mitigation or defense.  The punishment imposed was forfeiture of $28.00 for 1 month and 14 days extra duty.

7.  The applicant's military service records contain a copy of a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 28 April 1971.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about 27 April 1971, having knowledge of a lawful order issued by Captain George H. C_______ II, to wit:  Section III, DA Form 2627-1, which assigned 14 days extra duty, an order which it was the applicant’s duty to obey, failed to obey the same by failing to perform said extra duty.  This document shows that the applicant acknowledged receipt of the Article 15, but declined to submit matters in extenuation, mitigation or defense.  The punishment imposed was forfeiture of $10.00 for 1 month.

8.  The applicant's military service records contain a copy of a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 27 May 1971.  This document shows that non-judicial punishment was imposed by the company commander against the applicant for, on or about 24 May 1971, being derelict in the performance of his duties in that the applicant failed to prepare his wall locker and area for the Annual General Inspection, Enlisted Company, U.S. Army Medical Department Activity, Fort Ord, California.  This document shows that the applicant acknowledged receipt of the Article 15, but declined to submit matters in extenuation, mitigation or defense.  The punishment imposed was reduction to the grade of E-1 and forfeiture of $28.00 for 1 month.

9.  The applicant's military service records contain a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 10 June 1971.  Item 16 Basis for Suspension of Favorable Personnel Action) shows that an “x” was placed in the block next to “Elimination.”  Item 17 (Synopsis of Available Information Pertaining to Action Checked in Item 16) contains the entry, “EM [Enlisted Member] pending elimination UP [under the provisions of] AR [Army Regulation] 635-212.”  

10.  The applicant's military service records are absent a copy of the applicant’s administrative separation action.

11.  The applicant's military service records contain a copy of Headquarters, Department of Hospital Clinics, U.S. Army Medical Department Activity (MEDDAC) Fort Ord, Fort Ord, California, AH Form 453 (Report of Mental Status Evaluation), dated 23 June 1971.  This document shows, in pertinent part, that the applicant’s evaluation was required under the provisions of Army Regulation 635-212.  This document also shows that the assigned physician determined the applicant’s behavior was normal, he was fully alert and fully oriented, his thinking process was clear, and thought content was normal.  This document further shows that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in separation board proceedings.

12.  The applicant's military service records contain a copy of Headquarters, Enlisted Company, U.S. Army Medical Department Activity (MEDDAC) Fort Ord, Fort Ord, California, Unit Orders Number 50, dated 5 August 1971.  These orders show, in pertinent part, that the applicant was reduced to the grade of PV1 (E-1), effective 3 August 1971, based upon his approved separation.

13.  The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged from the U.S. Army under the provisions of Army Regulation 635-212, Separation Program Number (SPN) 28B, under conditions other than honorable.  Item 30 (Remarks) of the DD Form 214 shows, in pertinent part, the applicant had 15 days lost under Title 10, USC, section 972.  The DD Form 214 also shows that the applicant was discharged on 13 August 1971, credited with completing 1 year and 15 days net active service during the period under review, and issued a DD Form 258A (Undesirable Discharge Certificate).

14.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

15.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations

16.  Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), in effect at the time of the applicant's separation from active duty, provided procedures and guidance for eliminating enlisted personnel for, in pertinent part, frequent incidents of a discreditable nature with civil or military authorities.  This Army regulation provides that Soldiers discharged for unfitness will be furnished an undesirable discharge certificate, except that an honorable or general discharge certificate may be awarded by the separation authority.

17.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.   Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  Paragraph 31 (Item 11c - Reason and Authority) states, in pertinent part, "the authority for transfer or discharge will be entered in this item by reference to the appropriate regulation, circular, bulletin, special separation directive, statute, etc., followed by the SPN and descriptive reason for transfer or discharge."  

18.  Army Regulation 635-5-1 (Separation Program Numbers (SPN)), in effect at the time of the applicant's separation from active duty, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies the SPN of “28B” as the appropriate code to assign enlisted Soldiers discharged for unfitness who are involved in frequent incidents of a discreditable nature with civil or military authorities.

19.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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, 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.

20.  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.

21.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, the reason and authority for his discharge should be corrected because his discharge was unjust.  He also contends that his character of his service should be upgraded to under honorable conditions in connection with the correction of the reason and authority for his discharge.

2.  The evidence of record shows that punishment was imposed against the applicant under Article 15, UCMJ, on 4 occasions while he was stationed at Fort Ord, California, and on all 4 of those occasions the applicant failed to offer evidence in matters of extenuation, mitigation, or defense.  This is particularly noteworthy in that it shows the applicant failed to indicate, at the time, that he was encountering racial discrimination in his military unit or that he was being denied equal opportunities to work in the Army hospital.

3.  There is no evidence of record, and the applicant fails to provide sufficient documentary evidence, to support his claim that he encountered racial prejudice while assigned to Fort Ord, California; that he was denied equal opportunities to work in the Army hospital; or that there was a racial attitude being perpetrated at that time that was unjust and demeaning to minorities.  In this regard, the applicant provides no indication or documentary evidence that he reported any incidents of racial discrimination to his supervisors, his chain of command, or the staff of the Equal Employment Opportunity office on Fort Ord, California.  Therefore, in view of the foregoing, the applicant fails to provide sufficient documentary evidence to support his claim that he encountered racial prejudice from his chain of command or supervision, the nursing staff at the Army hospital, or from employees at other facilities on post.

4.  The evidence of record shows the applicant completed 1 year and 15 days net active service during the period of service under review.  The evidence of record also shows that, during this period, non-judicial punishment was imposed against the applicant under Article 15, UCMJ, on 5 separate occasions.  The
5 Article 15s were issued based on the applicant: (1) breaking the limits of post privileges; (2) being AWOL for 15 days from 22 December 1970 through
6 January 1971; (3) absenting himself from his appointed place of duty on
3 occasions; (4) disobeying the lawful order of his commanding officer; and
(5) being derelict in the performance of his duties.  

5.  The evidence of record shows the applicant was discharged based upon frequent incidents of a discreditable nature with military authorities.  Thus, the evidence of record confirms the reason and authority for the applicant’s discharge were appropriate for the offenses committed.  The evidence of record also shows the applicant’s record of service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  In addition, the evidence of record shows the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

6.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  The evidence of record indicates that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Thus, in the absence of evidence to the contrary, the Board concludes that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Therefore, the applicant is not entitled to correction of his discharge or upgrade of the character of service of his discharge.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

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

ABCMR Record of Proceedings (cont)                                         AR20080000659



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