IN THE CASE OF:	

		BOARD DATE:	9 July 2009  

		DOCKET NUMBER:  AR20090004809 


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 Undesirable Discharge (UD) be upgraded to an Honorable Discharge (HD).  

2.  The applicant states, in effect, that because he was a young black man in Alabama in 1967, he was railroaded and found guilty of an offense he did not commit.  He states he said and did nothing to the officer who showed racism in his voice and actions.  

3.  The applicant provides an Application for Review of Discharge from the Armed Forces of the United States (DD Form 293) 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 record shows he enlisted in the Regular Army and entered active duty on 21 January 1967.  He was trained in and awarded military occupational specialty (MOS) 13F (Auto Weapons Crewman), and the highest rank he attained while serving on active duty was private/E-2 (PV2).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows that during his tenure on active duty, he earned the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.  

4.  On 14 February 1967, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty at the prescribed time on or about 14 February 1967.  His punishment for this offense was a forfeiture of $21.00, a verbal reprimand, and 14 days of restriction and extra duty.  

5.  On 23 June 1967, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty at the prescribed time on or about 22 June 1967.  His punishment for this offense was a forfeiture of $14.00 and 14 days of restriction and extra duty.  

6.  On 14 July 1967, a Summary Court-Martial (SCM) found the applicant guilty of violating Article 91 of the UCMJ for willfully disobeying the lawful order of a superior noncommissioned officer (NCO).  The resultant sentence was confinement at hard labor for one month and a forfeiture of $64.00. 

7.  On 19 July 1967, the applicant's unit commander prepared a Bar to Reenlistment Certificate on the applicant.  He requested the applicant be barred from reenlistment based on his demonstrated record of judicial and NJP.  The bar to reenlistment was approved by the appropriate authority on 27 July 1967.  

8.  On 24 July 1967, a SCM found the applicant guilty of violating Article 86 of the UCMJ by failing to go to his appointed place of duty at the time prescribed on or about 16 July 1967.  The resultant sentence was 1 month restriction.  

9.  On 23 August 1967, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order on or about 18 August 1967. His punishment for this offense was a forfeiture of $14.00 and 14 days of restriction.


10.  On 1 November 1967, a Special Court-Martial (SPCM) found the applicant guilty of violating Article 91 and 113 of the UCMJ as follows:  Article 91, by being disrespectful in language toward his superior NCO; and Article 121, by sleeping while posted as range guard.  The resultant sentence was confinement at hard labor for 6 months and a forfeiture of $64.00 per month for 6 months.  

11.  On 3 November 1967, after being notified of his commander’s intent to initiate action to separate him under the provisions of Army Regulation 635-200, by reason of unfitness, the applicant consulted with legal counsel.  After being advised of the basis for the contemplated separation, its effects and of the rights available to him, the applicant waived his right to have his case considered by a by a board of officers, his right to a personal appearance before a board of officers, and his right to counsel.  He further elected not to make a statement in his own behalf.  

12.  On 22 November 1967, the unit commander recommended the applicant be separated for unfitness under the provisions of Army Regulation 635-212.  He cited the applicant's habits, failure to repair, disobeying of orders, and lack of interest in the performance of his duties as the reasons for taking the action.  

13.  On 12 December 1967, the separation authority approved the applicant’s discharge and directed that he receive an UD.  On 26 December 1967, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant on the date of his separation confirms he completed a total of 10 months, and 
13 days of creditable active military service.

14.  On 30 October 1974, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence, determined that the applicant's discharge was proper and equitable, and it voted to deny his request for a change to the characterization of his service and/or to the reason for his separation.  

15.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could authorize an honorable or general discharge if warranted by the Soldier's military record; however, an UD was normally considered appropriate for members separating under these provisions. 


16.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, provides that a general, under honorable conditions discharge (GD) 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 HD.  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 he was young and black and that due to racism was found guilty for something he did not do was carefully considered.  However, while the Board would never let stand any action that resulted from acts of racism or prejudice, there is no evidence of record or independent evidence provided by the applicant that supports his assertion that his discharge was the result of racism on the part of Army officials.  Therefore, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.   The record confirms that after being properly notified of the separation action by his unit commander and being advised of the basis for the action and of his rights by legal counsel, the applicant voluntarily elected to waive his right to have his case considered by a board of officers and he elected not to submit a rebuttal statements in his own behalf.  

3.  The applicant’s record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history that includes his acceptance of NJP on three separate occasions, and three court-martial convictions.  As a result, his record clearly did not support the issue of a GD or HD by the separation authority at the time, nor does it support an upgrade of his discharge at this late date.  The applicant’s UD accurately reflects his overall undistinguished record of service and absent any evidence of error or injustice in the separation process, there is an insufficient evidentiary basis to support granting the requested relief.  


4.  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 this 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 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)                                         AR20090004809



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004809



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1