IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080010403 


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 an upgrade of his discharge.

2.  The applicant states that during his military service, he got into some trouble with his mean and verbally/racially abusive commanding officer.  He was young at the time and did not react to the situation well.  However, since his discharge, he has stayed out of trouble and has been an outstanding citizen.  

3.  The applicant provided the following additional documentary evidence in support of his application.

	a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 12 May 1961. 

	b.  Undated letter of support from a Department of Veterans Affairs (DVA) Service Officer.

	c.  Letter, dated 30 November 1964, request for reconsideration of decision to upgrade his discharge.

	d.  Character reference letter, dated 30 June 2007, from the applicant’s pastor.  




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 records show he enlisted in the Regular Army for a period of 3 years on 16 June 1958.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 293.10 (Radio Operator).  The highest rank/grade he attained during his military service was private (PV2)/E-2.  

3.  The applicant's records show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar and the Marksman Marksmanship Qualification Badge with Carbine Bar.  His records do not show any significant acts of valor during his military service.

4.  On 2 February 1959, the applicant pled guilty at a Summary Court-Martial to one specification of wrongfully appropriating a military truck, of a value of more than $50, the property of the U.S. Government, on or about 28 January 1959.  The Court sentenced him to reduction to PVT/E-1 and forfeiture of $25.00 pay for one month.  The sentence was adjudged on 2 February 1959.  Furthermore, on 3 February 1959, the convening authority approved the sentence but suspended the reduction to PVT/E-1 for 30 days.  

5.  On 23 May 1960, the applicant pled not guilty at a Special Court-Martial to the charge and specification of willfully disobeying a lawful order from a superior commissioned officer, on or about 11 May 1960.  He also pled guilty to the charge and specification of being absent without leave during the period from on or about 11 May 1960 through on or about 12 May 1960.  The Court found him guilty of all charges and specifications and sentenced him to confinement at hard labor for 3 months and reduction to the lowest enlisted grade.  The sentence was adjudged on 23 May 1960 and approved on 2 June 1960. 

6.  On 12 October 1960, the applicant pled not guilty at a Special Court-Martial to the charge and specification of willfully disobeying a lawful order from a superior commissioned officer, on or about 9 September 1960.  He also pled guilty to the charge and specification of breaking restriction, on or about 5 October 1960.  The Court found him guilty of all charges and specifications and sentenced him to confinement at hard labor for 6 months and forfeiture of $40.00 pay for one month.  The sentence was adjudged on 12 October 1960 and approved on 20 October 1960. 

7.  On 11 May 1961, the applicant pled guilty at a Summary Court-Martial to the charge and specification of violating a general order by carrying a straight razor concealed on his person, on or about 6 May 1961, and the charge and specification of breaking restriction, on or about 4 May 1961.  The Court found him guilty of all charges and specifications and sentenced him to confinement at hard labor for 30 days and forfeiture of $43.00 pay.  The sentence was adjudged and approved on 11 May 1961. 

8.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, the applicant's records contain a notification memorandum from the Assistant Adjutant General, Headquarters, U.S. Army Electronic Proving Ground, Fort Huachuca, Arizona, informing the applicant that his discharge under the provisions of chapter 3 of Army Regulation 635-208 (Personnel Separations), by reason of unfitness, is directed, and that he was furnished an Undesirable Discharge Certificate.

9.  The DD Form 214 he was issued at the time shows he was discharged on
12 May 1961, in accordance with paragraph 3a, Army Regulation 615-208, for unfitness.  He was furnished an Undesirable Discharge Certificate.  This form further shows he completed 2 years, 2 months, and 30 days of military service during this period of enlistment and had 242 days of lost time. 

10.  The applicant submitted an undated letter of support from a DVA Service Officer in which the officer states that the applicant had a minor altercation with a verbally and racially abusive senior officer and that in the heated exchange, the applicant alleges that this officer hit him first causing the applicant to hit the officer back.  The DVA officer further adds that certain racial groups did not have their civil rights and as such they were not treated with respect.  The DVA officer adds that the applicant changed considerably since his discharge.

11.  In a character reference letter, dated 30 June 2007, the applicant’s pastor states that he has known the applicant for 15 years and that he is a loyal, trustworthy, faithful, and dependable member of the church.

12.  On 28 September 1962, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.

13.  On 16 October 1963, the Army Discharge Review Board denied the applicant’s petition for reconsideration of his earlier request for an upgrade of his discharge.

14.  On 11 February 1965, the Army Board for Correction of Military Records (ABCMR) determined that insufficient evidence was presented to indicate probable material error or injustice and accordingly, denied the applicant’s request for an upgrade of his discharge. 

15.  Army Regulation 635-208 (Personnel Separations) (later superseded by Army Regulation 635-200), in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

16.  Army Regulation 635-200, 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.

17.  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.  The applicant’s contention that his discharge should be upgraded was carefully considered.  Furthermore, his post service conduct as well as his character reference letters and letter of support were noted.  However, they are not sufficiently mitigating to grant the requested relief.

2.  The applicant’s record is void of the facts and circumstances surrounding his discharge.  However, his DD Form 214 shows he was discharged in accordance with the provisions of Army Regulation 635-208, for unfitness and was furnished an undesirable discharge.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

3.  The applicant's records reveal a disciplinary history which includes 4 known instances of courts-martial and several instances of AWOL and confinement.    There is no evidence in the available record and the applicant did not provide any substantiating evidence that shows his extensive misconduct was a result of his race.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable discharge.

4.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


															XXX
      ______________________
               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)                                         AR20080010403



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010403



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1