IN THE CASE OF:	  

		BOARD DATE:	        04 DECEMBER 2008

		DOCKET NUMBER:  AR20080014998 


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 reconsideration of his request for an upgrade of his discharge.

2.  The applicant defers his comments to his counsel.

3.  The applicant provides additional documents through his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board reconsider the applicant's request for an upgrade of his discharge.

2.  Counsel states, in a seven-page statement, in effect, that the applicant's discharge was based on racism and discrimination that existed in the military at the time and contends that because the applicant was black, he was subjected to harsher punishment than other non-black Soldiers, which is evident by the nature of his offenses and the degree to which he was punished.  He goes on to state that in his opinion, there is significant doubt that the discipline and discharge the applicant received from the service was fair and in keeping with Army Regulations and any doubt should be resolved in favor of the individual.  Accordingly, the applicant should have his discharge upgraded to an honorable discharge or at a minimum, a general discharge. 

3.  Counsel provides copies of documents from a Defense Studies Series titled "Integration of the Armed Forces 1940-1965"and a page from a Civil Rights Commission Report.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080006192, on 12 June 2008.

2.  The applicant enlisted in Buffalo, New York on 12 November 1959 for a period of 3 years.  He was transferred to Fort Dix, New Jersey to undergo his basic training.  He successfully completed his basic training and remained assigned to Fort Dix to undergo his advanced individual training (AIT) as a light weapons infantryman.  However, he went absent without leave (AWOL) on 10 February 1960 and remained absent until he surrendered to military authorities at Fort Niagara, New York on 13 February 1960.  He was returned to Fort Dix on 15 February 1960 and charges were preferred against him for the AWOL offense.

3.  He was convicted, pursuant to his plea, by a summary court-martial on 
19 February 1960 of being AWOL from 10 February to 13 February 1960 and was sentenced to perform hard labor without confinement for 14 days and a forfeiture of $35.00.

4.  He completed his AIT and was transferred to Germany on 9 April 1960, for assignment to the 18th Infantry Regiment located at Coleman Barracks in Sandhofen.

5.  On 17 February 1961, charges were preferred against the applicant after he refused punishment under Article 15 for being absent from his unit from 0001 hours, 17 February 1961 until 0430 hours on 17 February 1961.

6.  On 23 February 1961, he was convicted, pursuant to his plea, by a summary court-martial of being absent from his unit from 0001 hours until 0430 hours on 17 February 1961.  He was sentenced to a forfeiture of $50.00.

7.  On 13 March 1961, he was convicted, pursuant to his plea, by a special court-martial of disobeying a lawful order from his first sergeant to be present at formation at 0800 hours on 3 March 1961.  He was sentenced to confinement at hard labor for 6 months, reduction to the pay grade of E-1 and a forfeiture of pay.

8.  The applicant underwent a psychiatric examination on 15 March 1961 and the examining psychiatrist indicated that the applicant seems to have difficulty accepting discipline and authority.  His unit reported that he had poor interpersonal relationships and general incompatibility.  He had at least two court-martials and two punishments under Article 15.  The psychiatrist noted that he was an 18 year old, provocative and immature recruit who presents himself in a somewhat indifferent manner, he was alert, oriented to time, place and person and exhibited no signs or symptoms of any significant psychiatric disorder.  He opined that the applicant's difficulty in adjusting to the military setting in not the result of any psychiatric limitation, but seems attributable to his immaturity, impulsiveness and poor judgment.  He also opined that the applicant was a questionable candidate for rehabilitation and that the advisability of his retention was doubtful.

9.  The facts and circumstances surrounding the applicant's administrative separation are not present in the available records as they were loaned to the Veterans Administration in Buffalo, New York on 25 May 1961.  However, his records do contain a duly constituted report of separation (DD Form 214) authenticated by the applicant which shows that he was discharged under other than honorable conditions on 18 April 1961, under the provisions of Army Regulation 635-208 for unfitness.  He had served 1 year, 4 months and 1 day of total active service and had 37 days of lost time due to AWOL and confinement.

10.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness for those individuals involved in frequent incidents of a discreditable nature with civil or military authorities.  An undesirable discharge was normally considered appropriate.  

DISCUSSION AND CONCLUSIONS:

1.  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 violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions that he was subjected to racial prejudice with regards to his punishment and discharge have been considered.  However, given his repeated misconduct and his otherwise undistinguished record of service, they are not sufficiently mitigating to warrant an upgrade of his discharge.

4.  The applicant has simply failed to show through the evidence submitted with his application and the evidence of record that he was singled out because of his race and that his punishment was any different than any other member of his unit at the time for the same offense.  It is also noted that in all instances in which the applicant was convicted by courts-martial, he plead guilty to the charges against him.

5.  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 the requirement.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20080006192, dated 17 June 2008.




      _______ _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)                                         AR20080014998



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ABCMR Record of Proceedings (cont)                                         AR20080014998



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