IN THE CASE OF:	  

		BOARD DATE:	  27 January 2010

		DOCKET NUMBER:  AR20090013362 


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.  It is not entirely clear if the applicant is asking that his 1968 discharge under other than honorable conditions be upgraded or relief from his court-martial conviction.  However, based on the fact that he states he was "court-martialed and kicked out of the Army and stripped of his rank and benefits" it appears he is, in actuality, requesting that his discharge be upgraded.

2.  The applicant states he was falsely accused of a crime he did not commit due to racial prejudice.  He states he did not do what he was accused of and he was court-martialed without representation.

3.  The applicant states he joined the Army in 1965 and went to Vietnam in 1966 where he was eventually promoted to pay grade E-5.  He states that following his more than 11-month tour of duty in Vietnam he was assigned to Hunter Army Airfield as first cook over a white E-4.  He states he was framed for stealing a television that someone put in his locker while he was on duty.  He states he was then court-martialed and kicked out of the Army and stripped of his rank and benefits.

4.  The applicant provides no additional evidence in support of his request. 

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.  Records available to the Board indicate the applicant enlisted in the Regular Army and entered active duty on 13 August 1965.  He was initially reassigned to Vietnam in September 1966 as part of a unit permanent change of station with the 14th Engineer Battalion where he was assigned duties as a pioneer (12A).  In January 1967 he assumed duties as a cook with the 20th Engineer Company.  By February 1967 he had been promoted to pay grade E-4.  There is no indication he was ever promoted to pay grade E-5.

3.  In September 1967 the applicant departed Vietnam and was assigned as a cook at Hunter Army Airfield in Georgia.  He was punished under Article 15 of the Uniform Code of Military Justice in November 1967 for being absent from his place of duty.

4.  On 14 February 1968 the applicant was convicted by a special court-martial in consonance with his pleas of disobeying a lawful order and absenting himself from his place a duty.  His sentence included reduction to pay grade E-1.

5.  On 29 February 1968 he was barred from reenlisting.

6.  On 29 May 1968 the applicant was convicted by a special court-martial in consonance with his plea of stealing a television and tape recorder from another Soldier.

7.  Documents associated with the applicant's administrative separation, other than the undated final approval memorandum, were not in records available to the Board.  However, the applicant's 1968 DD Form 214 shows that he was discharged under other than honorable conditions on 6 September 1968 under the provisions of Army Regulation 635-212 (Enlisted Separations).  The undated approval document signed by the commanding general of Fort Stewart, Georgia, 




noted the recommendation for discharge under the provisions of Army Regulation 635-212 was approved for "frequent incidents of a discreditable nature with military authorities and an established pattern showing dishonorable failure to pay just debts."  An Undesirable Discharge Certificate was directed.

8.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

9.  There is no evidence the applicant applied for a discharge upgrade to the Army Discharge Review Board within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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.






12.  Court-martial convictions stand as adjudged or modified through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and only then if clemency is determined to be appropriate.  Clemency is an act of mercy or leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's under other than honorable conditions discharge was the result of several incidents, the last of which was his court-martial for stealing a television and tape recorder.  While the applicant argues that he was falsely accused, he does not explain why he pled guilty to the offense.

2.  Notwithstanding the fact that all documents associated with the applicant's administrative discharge are not available to the Board, in the absence of evidence to the contrary, it is presumed that all requirements of law and regulations, then in effect, were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's argument that he was a victim of racial prejudice is not supported by any evidence of record or provided by the applicant.

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 the aforementioned requirement.

5.  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)                                         AR20090013362



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ABCMR Record of Proceedings (cont)                                         AR20090013362



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