IN THE CASE OF:	 

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080010016 


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, in effect, that his 1967 undesirable discharge be upgraded to under honorable condition.  In an addendum to his DD Form 149 (Application for Correction of Military Record), he indicates he wants his discharge upgraded to honorable.  

2.  The applicant states, in effect, that he really feels that his discharge was honorable.  He also states, in effect, that when he served in Germany, he dated a German woman and there were a lot of prejudice and jealous people.  The higher authorities were also jealous of him dating a German woman.  They had control over veterans and the way they could be discharged.  He further states that back in those times there was a lot of dislike for black guys overseas.  He would like those times taken into consideration.

3.  The applicant provides no additional documents in support of his application.

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 records show he enlisted in the Maryland Army National Guard (MDARNG), in pay grade E-1, in October 1963.  He was ordered to active duty for training on 8 January 1964.  He was honorably released from active duty on 7 July 1964 and reverted back to the MDARNG.

3.  The applicant enlisted in the Regular Army, in pay grade E-2, on 9 July 1964, for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 12A, Pioneer Engineer.  He was promoted to pay grade E-3 on 12 May 1965.

4.  The applicant was honorably discharged for immediate reenlistment on 21 October 1965 and was issued a DD Form 214.  He reenlisted on 22 October 1965, for 6 years.  He served in Germany from 8 August 1964 to 18 July 1967.

5.  On 6 November 1965, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from and failing to go to his appointed place of duty on 23 October 1965, breaking restriction on 4 November 1965, and absenting himself from his unit from 4 November to 6 November 1965.  The punishment included a reduction to pay grade E-3 and 14 days of restriction and extra duty.

6.  On 27 November 1965, the applicant accepted punishment under Article 15, UCMJ, for willfully disobeying a lawful order from his superior non-commissioned officer on 10 November 1965.  The punishment included a period of 21 days of restriction.

7.  On 16 December 1965, the applicant was convicted by a special court-martial of two specifications of absenting himself from his unit from 2 to 4 December 1965 and on 7 December 1965.  He was also convicted of one specification of failing to obey a lawful order on 7 December 1965.  He was sentenced to a forfeiture of $35.00 per month for 3 months and 14 days of restriction.  The sentence was approved on 21 December 1965.

8.  On 4 January 1966, the convening authority set aside so much of the sentence of the forfeiture and restriction and affirmed the findings of guilty of Charge I and its specifications.  

9.  On 2 November 1966, the applicant accepted punishment under Article 15, UCMJ, for absenting himself from his unit on 1 November 1966.  The punishment included 14 days of restriction and extra duty.
10.  On 28 November 1966, the applicant accepted punishment under Article 15, UCMJ, for absenting himself from his unit from 12 to 13 November 1966.  The punishment included a detention of $50.00 pay per month for two months and to be detained for four months.

11.  On 3 February 1967, the applicant was convicted by a special court-martial of two specifications of absenting himself from his unit from 18 to 23 January 1967 and on 1 February 1967.  He was sentenced to a forfeiture of $40.00 pay per month for five months, a reduction to pay grade E-1, and confinement at hard labor for five months.  

12.  On 7 February 1967, the applicant’s unit commander issued a Certificate of Unsuitability for Reenlistment to the effect that he considered the applicant a substandard Soldier who should be barred from reenlistment in the Army.  The unit commander stated that he had counseled the applicant on numerous occasions and had advised him of the adverse consequences which could ensue from that or similar personnel actions.  The unit commander also stated, in effect, that counseling had been to no avail and rehabilitation to date had failed and the applicant’s conduct and efficiency were unsatisfactory.  

13.  On the same day, the applicant acknowledged receipt of the certificate and elected not to submit a statement in his own behalf.  

14.  On 23 February 1967, the convening authority suspended the unexecuted portion of the sentence to confinement at hard labor.  On 28 March 1967, the convening authority vacated the unexecuted portion of the sentence to confinement and directed the sentence to be duly executed.

15.  On 25 April 1967, the convening authority suspended the unexecuted portion of the sentence to confinement at hard labor for three months, at which time, unless the suspension was sooner vacated, the unexecuted portion of the sentence would be remitted without further action.

16.  The applicant was discharged on 8 May 1967, in pay grade E-1, under the provisions of Army Regulation 635-212, with an undesirable discharge.  He was credited with 1 year, 5 months, and 11 days total net service and 2 years and 14 days prior active service.  He was also credited with 36 days of lost time due to being absent without leave and being in confinement.  

17.  On 12 December 1978, the applicant was advised that his discharge was reviewed by the Army Discharge Review Board (ADRB) and the ADRB did not grant a change or full upgrade of his discharge.  The letter also advised the applicant he could be entitled to a new review of his case.  There is no evidence the applicant applied to the ADRB for this review.
18.  Army Regulation 635-212 (Enlisted Separations), then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unsuitability.  It provided, in pertinent part, for discharge due to unsuitability because of apathy of those individuals who displayed a lack of appropriate interest and/or an inability to expend effort constructively.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  An undesirable discharge was normally considered appropriate.

19.  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 clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

20.  Army Regulation 635-200, paragraph 3-7b, also 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.   The evidence of record shows that the applicant was punished under Article 15, UCMJ, and convicted by special courts-martial of absenting himself from his unit on several occasions, which contributed to his discharge under the provisions of Army Regulation 635-212.  The applicant’s unit commander stated that he had counseled the applicant on numerous occasions and that counseling had been to no avail and that rehabilitation had failed.  He also stated that the applicant’s conduct and efficiency were unsatisfactory and he issued a certificate to bar the applicant from reenlistment.  

2.  The applicant's contentions have been noted; however the applicant has provided insufficient evidence to show that his 1967 discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.  It is apparent that the applicant’s discharge was based on his absences and performance and not based on prejudice which may have existed and which he may have been the recipient of; however, there is an insufficient basis to support his request for an upgrade of his undesirable discharge.

3.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

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
      
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)                                         AR20080010016



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ABCMR Record of Proceedings (cont)                                         AR20080010016


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