IN THE CASE OF:	  

		BOARD DATE:	       18 February 2009

		DOCKET NUMBER:  AR20080016641 


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, reconsideration of his request that his discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states he believes the record to be unjust due to the fact that he was involuntarily ordered to active duty in 1973 and sent to Fort Bragg, North Carolina during a time of harsh racism.  He adds that he continually endured racial slurs that imposed tremendous mental stress and frustration on him.  The applicant also states that his request for reconsideration is submitted based on the fact that he just recently learned of his military equal opportunity/civil rights.

3.  The applicant provides no additional documentary evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, reconsideration of the applicant’s request that his discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  Counsel states, on 23 October 2008, the applicant informed the California National Guard, Joint Force Headquarters, Equal Opportunity (EO) Office that he had endured racism and prejudice in the California Army National Guard (CAARNG) and United States Army (USA) during the period 17 August 1972 through 14 February 1975.
     a.  Counsel states the applicant informed him that during the period 17 August 1972 through 14 February 1975 he would be referred to with racial slurs and, through frustration, he may have acted out immaturely.

     b.  Counsel states the applicant was involuntarily ordered to active duty and sent to Fort Bragg, North Carolina during the period 20 August 1973 through
14 February 1975 and he endured a tremendous amount of racism during this period.  While in North Carolina, the applicant was commonly referred to with racial slurs, which caused him to be combative with authorities to relieve his frustration, and also to attempt suicide once.

3.  Counsel provides a copy of Departments of the Army and the Air Force, Joint Task Force Headquarters, Office of The Adjutant General - California National Guard, Sacramento, California, memorandum, dated 23 October 2008, subject:  Decision Reconsideration Letter to “Upgrade Discharge” from Undesirable to General, for [Mister (Private First Class)[Applicant’s Name], Reference Number AR20080009786.

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 AR20080009786, on 16 September 2008.

2.  The applicant now provides a new argument in support of his previous request that requires reconsideration.  

3.  The applicant's military personnel records show he enlisted in Army National Guard of the United States (ARNGUS) and CAARNG for a period of 6 years on 22 April 1972 and was ordered to active duty for training (ADT) on 17 August 1972.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 64C (Motor Transport Operator).  The applicant was honorably released from ADT on 22 December 1972.

4.  The applicant was processed for involuntary active duty due to unsatisfactory participation as an obligated Reservist and involuntarily ordered to active duty as a member of the U.S. Army Reserve (USAR) for 19 months and 24 days effective 24 July 1973.

5.  On 20 August 1973, the applicant reported to the U.S. Army Reception Station, Fort Ord, California.  He was assigned to the 839th Transportation Company, Fort Bragg, North Carolina on 29 August 1973 and further assigned to the 126th Transportation Company, (Medium Truck) Fort Bragg, North Carolina on 6 September 1973.

6.  The applicant’s military personnel records contain a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 5 February 1974, that shows the applicant’s commander imposed nonjudicial punishment against him for wrongfully having a controlled substance in his possession and for violating a general regulation by appearing off the military reservation in a fatigue uniform.  Section II (Acknowledgment of Notification), in pertinent part, shows that on 7 February 1974 the applicant acknowledged receipt of the Article 15 proceedings; he did not demand trial by court-martial; and that no matters in extenuation, mitigation, or defense were submitted by the applicant.

7.  On 16 May 1974, the applicant departed absent without leave (AWOL).

8.  The applicant’s military personnel records contain a copy of Headquarters, 126th Transportation Company (Medium Truck), Fort Bragg, North Carolina, letter, dated 30 May 1974, subject:  Commander’s Inquiry.  This document shows that the applicant departed AWOL from duty at about 1300 hours, 16 May 1974, after being told he would be put into pretrial confinement.  This document also shows that the applicant’s friends in the unit could provide no useful information regarding the applicant’s case.

9.  The applicant was dropped from the rolls on 15 June 1974.  He surrendered to Federal authorities and was returned to military authorities on 19 January 1975.

10.  The applicant’s discharge proceedings are not available.  However, the 
DD Form 214 (Report of Separation from Active Duty) issued to the applicant on the date of his separation confirms that he entered active duty this period on 
20 August 1973, was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service), and he was issued an Undesirable Discharge Certificate.  At the time he had completed 
9 months and 22 days of net active service; 4 months and 6 days of prior active service; 1 year, 1 month, and 28 days of total active service; 11 months and 
22 days of prior inactive service; and 2 years, 1 month, and 20 days of total service for pay.  Item 21 (Time Lost) and Item 27 (Remarks), in pertinent part, show he had 248 days of time lost under Title 10, United States Code, section 972, from 16 May 1974 through 18 January 1975.


11.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  A discharge under other than honorable conditions was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

12.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

13.  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 contends, in effect, his request to upgrade his under other than honorable conditions discharge to a general discharge under honorable conditions should be reconsidered because he believes the record to be unjust due to the fact that he was involuntarily ordered to active duty, sent to Fort Bragg, North Carolina during a time of harsh racism, he continually endured racial slurs that imposed tremendous mental stress and frustration on him, and he just recently learned of his military equal opportunity/civil rights.

2.  The evidence of record shows the applicant was processed by the CARRNG for involuntary active duty due to his unsatisfactory participation as an obligated Reservist and that he was involuntarily ordered to active duty in the USAR on
24 July 1973.  In this regard, the applicant offers insufficient evidence to show that the action to involuntarily order him to active duty was improper or unjust.

3.  The evidence of record shows that nonjudicial punishment was imposed against the applicant in February 1974 at Fort Bragg, North Carolina for possession of a controlled substance and violation of a lawful general regulation. The evidence of record also shows that, at that time, the applicant offered no matters in extenuation, mitigation, or defense of his actions.  In this regard, the applicant offers insufficient evidence to show that he continually endured racial slurs that imposed mental stress and frustration on him while at Fort Bragg, North Carolina.

4.  The evidence of record shows that the applicant departed AWOL from his unit at Fort Bragg, North Carolina on 16 May 1974.  The evidence of record also shows that the applicant’s commander sought information from the applicant’s friends in the unit regarding possible reasons for the applicant’s AWOL.  The applicant's friends did not provide any useful information regarding the applicant’s case at that time that would substantiate the applicant's current contentions.  In this regard, the applicant offers insufficient evidence to show that he continually endured racial slurs that imposed mental stress and frustration on him while at Fort Bragg, North Carolina.

5.  In the absence of evidence to the contrary, it is concluded that the applicant’s request for discharge for the good of the service in lieu of trial by court-martial was voluntary, administratively correct, and the appropriate separation authority approved the applicant’s request for discharge.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the appropriate discharge certificate was furnished.  

6.  The applicant’s claims of racial discrimination and injustice, initiated more than 33 years after the period of service under review, and as related by counsel, were carefully considered.  However, in view of all of the foregoing, the applicant provides insufficient evidence to support his claims.  Therefore, there is insufficient basis to upgrade the characterization of the applicant's discharge to general under honorable conditions.

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 that 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 AR20080009786, dated 16 September 2008.




      _______ _   _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)                                         AR20080016641



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ABCMR Record of Proceedings (cont)                                         AR20080016641



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