IN THE CASE OF:	  

		BOARD DATE:	    2 February 2010

		DOCKET NUMBER:  AR20090013360 


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 be upgraded.

2.  The applicant states that his discharge was based on his race.  He adds that the staff members of his company were all white and discharged over 100 black Soldiers.  He maintains that he heard the staff boast about getting rid of a lot of black Soldiers with more to go.  The applicant offers that his first discharge was honorable. 

3.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).  

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 Army National Guard (ARNG) on 17 December 1962.  On 7 January 1963, he was ordered to active duty for training and was honorably released to his ARNG unit on 6 July 1963 after completing 6 months of active service.

3.  On 18 March 1964, the applicant enlisted in the Regular Army (RA).

4.  On 31 March 1964, nonjudicial punishment was imposed against the applicant for failing to go to his appointed place of duty at the prescribed time.  His punishment consisted of a forfeiture of $20.00 pay and restriction for 14 days.

5.  Special Court-Martial (SPCM) Order Number 12, dated 4 August 1964, shows the applicant was convicted of the following offenses:  violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 1630 hours on 23 July 1964 to 0030 hours on 24 July 1964; and violation of Article 121 of the UCMJ for wrongfully appropriating a military vehicle.  His sentence consisted of confinement at hard labor for 4 months, a forfeiture of $65.00 pay for 4 months, and reduction to the rank/grade of private (PV1)/E-1.

6.  On 4 November 1964, the applicant’s commander recommended that he be discharged under the provisions of Army Regulation 635-208, due to unfitness.

7.  In the applicant's statement, dated 5 November 1964, he acknowledged that he had been advised of the basis for the contemplated separation action, its effects and the rights available to him.  He waived his right to counsel, a personal appearance and consideration of his case by a board of officers.  He also elected not to submit a statement in his behalf.

8.  The applicant acknowledged he understood that he may be furnished an undesirable discharge, that he may be deprived of many or all Army benefits, and that he may be ineligible for many or all Department of Veterans Affairs benefits. He also acknowledged that he understood that he may be ineligible for benefits under both Federal and state laws and that he may expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge. 

9.  On 29 September 1964, the applicant underwent a psychiatric evaluation in which he was diagnosed with "Passive aggressive reaction."  In the evaluation the psychiatrist stated that the applicant wanted out of the Army any way available to him.  The psychiatrist indicated that the applicant was a candidate for separation under the provisions of Army Regulation 635-208. 


10.  On 16 November 1964, the appropriate authority approved the applicant's discharge under the provisions of Army Regulation 635-208.  He directed that the applicant be issued an Undesirable Discharge Certificate.  

11.  On 10 December 1964, the applicant was discharged under the provisions of Army Regulation 635-208, due to unfitness, with an undesirable discharge.  The applicant had completed a total of 5 months and 21 days of creditable active service under the enlistment under review and he had 94 days of lost time due to being AWOL and in confinement.  

12.  The applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 7 March 2001, his application was returned without action because he failed to submit his case to the ADRB within that board's
15-year statute of limitations. 

13.  Army Regulation 635-208 (Personnel Separations), then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for undesirable habits and traits of character.  It provided, in pertinent part, that a board of officers will convene for the elimination of enlisted personnel having undesirable habits and traits of character.  Recommendation for discharge because of undesirability will be made in the case of an enlisted person who repeatedly commits petty offenses not warranting trial by courts-martial.  When discharged because of undesirable habits or traits of character, an Undesirable Discharge Certificate was normally considered appropriate.

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.  Whenever there is doubt, it is to be resolved in favor of the individual.

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 he was discharged due to his race.  

2.  The available evidence shows the applicant received nonjudicial punishment, and a court-martial conviction for misconduct.  He also had 94 days of lost time due to being AWOL and in confinement.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.

3.  Further, the available evidence confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The applicant’s discharge accurately reflects his overall record of service.  

4.  Additionally, the available evidence indicates the applicant wanted to be released from the Army any way that was available to him.  There is no evidence that he was discriminated against or that his discharge was racially motivated.

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.




      _______ _   _______   ___
               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)                                         AR20090013360



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ABCMR Record of Proceedings (cont)                                         AR20090013360



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