IN THE CASE OF:	  

		BOARD DATE:	       5 November 2009

		DOCKET NUMBER:  AR20090010103 


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 undesirable discharge be upgraded to general.   

2.  The applicant states, in effect, that he was 17 years of age at the time he enlisted in the United States Army.  He had a South African accent and some of the black Soldiers thought he supported the white controlled government of South Africa; therefore, he was constantly harassed.  This could not have been further from the truth.  His problems were compounded with the knowledge that his parents were separating.  He was at a loss about what to do.  He could have used some help.  Eventually, he was arrested and placed in the stockade.  He learned at the time of his release that his mother and sister had been killed in Gettysburg, Pennsylvania.

3.  The applicant provides, in support of his application, a letter of support from his sister. 

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.  On 22 March 1970, the applicant, at 17 years of age, enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 11D (Armor Reconnaissance Specialist). 

3.  On 28 July 1970, the applicant was assigned to Fort Benning, GA for basic airborne training.  There is no record showing that he attended or completed this training. 

4.  On 8 August 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for 3 days.  The punishment included a forfeiture of $32.00 pay per month for 1 month.

5.  On 3 November 1970, the applicant was convicted by a special court-martial of being AWOL for 50 days.  His sentence consisted of a forfeiture of $80.00 pay and reduction to pay grade E-1.

6.  On 26 February 1971, charges were preferred under the UCMJ for violation of Article 86, for being AWOL from on or about 16 November 1970 to on or about 12 February 1971 (90 days).

7.  On 26 February 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, 
chapter 10. 

8.  In his request for discharge, the applicant indicated that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   



9.  On 15 March 1971, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 15 March 1971, the applicant was discharged accordingly.  He had completed a total of 7 months and 4 days of creditable active military service and he had accrued 140 days of lost time.

10.  On 7 May 1980, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part that, a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  An undesirable discharge was considered appropriate at the time the applicant was discharged.

12.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for being AWOL for more than 30 days is a dishonorable discharge and confinement for 1 year.

13.  The letter of support provided by the applicant from his sister states that the applicant, while on active duty, had been harassed because of his South African accent.  She further states that she also had been harassed by three black girls at her high school and that racial tensions were very high at the time.

14.  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.

15.  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 that his discharge should be upgraded because he was young at the time and had been harassed by black Soldiers due to his accent.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was 17 years of age when he enlisted; however, he successfully completed his basic training and advanced individual training, showing that he had the ability to follow orders and to learn.  His satisfactory performance demonstrated his capacity to serve and showed that he was neither too young nor immature.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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 aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090010103



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ABCMR Record of Proceedings (cont)                                         AR20090010103



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