IN THE CASE OF:	  

		BOARD DATE:	  	   29 July 2008

		DOCKET NUMBER:  AR20080007378 


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 that his undesirable discharge be upgraded. 

2.  The applicant states, in effect, that he was attacked during basic training while sleeping.  He contends that he has felt defenseless over the years and that he has had to deal with depression from racism in his military service.  He also states that he is considered a respectable man of character.  

3.  The applicant provides three character reference letters.

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 was inducted on 3 January 1968.  

3.  On 28 February 1968, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) for 11 hours.  His punishment consisted of a forfeiture of pay and restriction.

4.  On 7 March 1968, nonjudicial punishment was imposed against the applicant for breaking restriction.  His punishment consisted of a forfeiture of pay.

5.  The applicant successfully completed basic training.  

6.  On 30 July 1968, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 8 April 1968 to 23 July 1968.  He was sentenced to forfeit $41.00 pay per month for 6 months and to be confined at hard labor for 6 months.  On 31 July 1968, the convening authority approved the sentence.  

7.  The applicant completed advanced individual training in military occupational specialty 76A (supplyman).

8.  On 11 December 1968, nonjudicial punishment was imposed against the applicant for failing to go at the prescribed time to his appointed place of duty.  His punishment consisted of a forfeiture of pay.

9.  On 6 March 1969, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 11 January 1969 to 24 February 1969.  He was sentenced to be reduced to E-1, to forfeit $73.00 pay per month for 6 months, and to be confined at hard labor for 6 months.  On 14 March 1969, the convening authority approved the sentence.  On 27 March 1969, so much of the approved sentence as pertained to forfeiture in excess of forfeiture of $46.00 per month for 6 months was set aside.   

10.  On 10 April 1969, the applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  His unit commander cited that the applicant’s established pattern of complete disregard for military authority and his defective attitude warranted discharge from the military service for unfitness.   



11.  On 10 April 1969, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf. 

12.  On 14 April 1969, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.      
13.  On 22 April 1969, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 5 months and 23 days of creditable active service with 274 days lost due to AWOL and confinement.  

14.  In support of his claim, the applicant provided three character reference letters from his pastor, a cousin, and a friend.  They attest that the applicant is a man of high integrity, an upstanding member of the community, a mentor, a role model, and a spiritual advisor.

15.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations. 

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  

18.  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.  There is no evidence of record which shows the applicant was a victim of racial discrimination.

2.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

3.  The applicant’s record of service included three nonjudicial punishments, two special court-martial convictions, and 274 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
 
5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___  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.



      ________xxxx__________
               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)                                         AR20080007378



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ABCMR Record of Proceedings (cont)                                         AR20080007378



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