IN THE CASE OF:	 

		BOARD DATE:	  31 March 2009

		DOCKET NUMBER:  AR20080018824 


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 discharge under other than honorable conditions be upgraded to under honorable conditions.

2.  The applicant states he was the only Negro officer in the Regular Army up for promotion to the rank of captain and at the time if made he would have been in line for promotion to company commander of the Transportation Company which served the 101st Airborne Division.  He states he never had a hearing before the commanding general during the time of his discharge.  He states he never appeared before any military court or board to defend himself with or without counsel.  He states the discharge was done administratively and without due process according to the U.S Military Justice Code of Conduct.

3.  The applicant provides, in support of his application, copies of his nominations for appointment as an officer of the Regular Army, his DA Form 873 (Certificate of Clearance and/or Security Determination Under EO [Executive Order] 10450), one page from his DA Form 61 (Application for Appointment), his DA Form 235 (Recommendation for Appointment of ROTC Graduate as a Reserve Commissioned Officer of the Army), two DA Forms 71 (Oath of Office - Military Personnel), his designation as a Distinguished Military Student, his DD Form 214 (Report of Separation from Active Duty) with an effective date of 21 April 1961, and one page from his DA Form 66 (Officer Qualification Record).




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 commissioned a second lieutenant in the U.S. Army Reserve Transportation Corps on 1 August 1956.

3.  The applicant was commissioned a second lieutenant in the Regular Army Transportation Corps on 6 August 1956.  He was promoted to first lieutenant on 6 February 1958.

4.  On 28 November 1960, the applicant was notified he was not selected for promotion to captain by the Board to select First Lieutenants for promotion to Captain that adjourned on 5 August 1960.

5.  The facts and circumstances pertaining to the applicant’s discharge are not contained in the available records.

6.  On 21 April 1961, the applicant was discharged under the provisions of Army Regulation 635-120 (Resignations and Discharges), paragraph 4, resignation for the good of the service in lieu of trial by court-martial.  He was issued a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).  He had completed 4 years, 8 months, and 16 days of active service that was characterized as under other than honorable conditions.

7.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations. 

8.  The applicant submitted an additional statement, dated 16 March 2009, wherein he stated his discharge should be voided and his status should be reclassified as honorable with all rights, privileges, and amenities pertaining thereto.  He stated that since he was coerced and literally "water boarded" from military service, proceeds should be augmented to make fair and just compensation in keeping with the agonizing exclusion from military service and restoration to include promotions, compatible with his peers.

9.  Army Regulation 635-120, paragraph 4, then in effect, provided that an officer whose conduct had rendered him triable by court-martial for an offense punishable by dismissal could tender his resignation for the good of the service in lieu of trial.  In addition, this regulation provided that an officer who was under a suspended sentence of dismissal could likewise tender his resignation for the good of the service.  This regulation further provided that commanders were to ensure that there was no element of coercion in a tender of resignation for the good of the service and that the officer concerned was allowed a reasonable period of time to make a personal decision in cases wherein resignation was contemplated.   A resignation for the good of the service, if accepted by the Department of the Army, normally was accepted as under other than honorable conditions in which case the officer was furnished a DD Form 794A.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was the only Negro officer in the Regular Army up for promotion to the rank of captain.  However, he provided no evidence to support this contention.  He was notified on 28 November 1960 that he had not been selected for promotion to captain by the Board that adjourned on
5 August 1960.  Therefore, there is no evidence that the applicant was being considered for promotion at the time of his discharge on 21 April 1961.

2.  Based on the provisions under which the applicant was discharged he would have tendered his resignation for the good of the service in lieu of trial by court-martial.  Army Regulation 635-120 specifically provided that commanders were to ensure that there was no element of coercion when an officer was tendering a resignation for the good of the service and that the officer was allowed a reasonable period of time to make a personal decision in 	these cases.  The applicant contends he was coerced and literally "water boarded" from military 
service.  However, he has provided no official documentation or other evidence to support his contention.  
3.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

4.  The facts and circumstances of the applicant's resignation were not available for review.  Therefore, in the absence of evidence to the contrary, it is presumed that all requirements of law and regulations in effect at the time were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is presumed that the type of discharge and the reason for separation were appropriate.  

5.  In order to justify correction of a military record the applicant must, 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.

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20080018824



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ABCMR Record of Proceedings (cont)                                         AR20080018824



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