IN THE CASE OF:	

		BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090013394 


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 young and immature.  He states that he did not understand the implications of not defending himself against the accusations made against him.  He also states that he was never offered rehabilitation or counseling and would have had a better chance as a young black man in today’s Army by escaping the racial prejudices that he experienced.  Now that he is more mature it is important that he apologize to his country and to his fellow Soldiers for not putting his country first.

3.  The applicant provides, in support of his application, a copy of his administrative discharge packet including copies of his nonjudicial punishments (NJP’s) and court-martial.

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 10 January 1973, at age 17 years and 7 months, the applicant enlisted in the Regular Army.  He successfully completed his initial training and was awarded military occupational specialty (MOS) 36K (Field Wireman).  On 
10 May 1973, he was advanced to private, pay grade E-2.

3.  On 29 May 1973, the applicant received NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to go to his appointed place of duty at the prescribed time; and for disobeying a lawful order from a commissioned officer to perform extra training.  His punishment included a forfeiture of $50.00 pay for 1 month, and 10 days of restriction and extra duty.

4.  On 1 June 1973, the applicant received NJP for breaking restriction.  His punishment included a forfeiture of $70.00 pay for 1 month.

5.  On 21 June 1973, the applicant received NJP for failure to go to his appointed place of duty at the time prescribed.  The punishment included a forfeiture of $85.00 pay for 1 month.

6.  On 29 June 1973, the applicant departed Fort Dix, New Jersey for duty in Panama.

7.  On 11 July 1973, the applicant was assigned as a message clerk with the 
4th Battalion, 20th Infantry Regiment.

8.  On 7 August 1973, the applicant received NJP for failure to obey a lawful order (two specifications).  His punishment included reduction to private, pay grade E-1, a forfeiture of $70.00 pay for 1 month and 14 days of restriction and extra duty.

9.  On 28 August 1973, the applicant received NJP for communicating a threat and for breaking restriction.  His punishment included a forfeiture of $150.00 pay for 2 months, 45 days of extra duty (15 days suspended) and 45 days of restriction (30 days suspended).  On 25 September 1973, the suspended portion of the punishment was vacated.





10.  On 18 October 1973, the applicant was convicted by special court-martial of failure to go to his appointed place of duty (3 charges with a total of five specifications).  The applicant pled guilty to all charges and specifications.  His sentence consisted of confinement at hard labor for 60 days and a forfeiture of $100.00 pay for 3 months.  He served 43 days in confinement.

11.  On 11 December 1973, the applicant’s commander initiated a recommendation to separate him from the service under the provisions of Army Regulation 635-200, paragraph 13-5(a)1, for unfitness.  The commander stated that the applicant had received considerable counseling by social workers, the leadership team and unit cadre.  He did not respond favorably to this counseling or the extra duties given to him.  The commander stated that the applicant did not meet the criteria for further rehabilitative attempts.

12.  On 12 December 1973, the applicant consulted with counsel, and elected to waive consideration of his case by a board of officers; to waive a personal appearance before a board of officers; to waive making a statement in his own behalf; and to waive representation by counsel.

13.  On 17 December 1973, the appropriate authority approved the recommendation and directed that the applicant be issued an Undesirable Discharge Certificate.  Accordingly, he was discharged on 19 December 1973. He had completed 9 months and 15 days of creditable active service.

14.  On 20 June 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

15.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  Paragraph 13-5(a)1 provided for the separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debts, failure to support dependents and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

16.  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.

17.  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 young and immature, that he was never offered rehabilitation or counseling, and that his discharge should now be upgraded to general.  

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.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

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.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was 
17 years of age at time of his enlistment.  However, he was able to complete his basic training and to be awarded an MOS.  This satisfactory performance demonstrated his capacity to serve and shows that he was neither too young nor immature.

6.  The applicant's contention that he did not receive counseling or rehabilitation because of racial prejudices is not supported by the available evidence.  He has not provided any substantiating documentation to support this contention.

7.  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.

8.  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)                                         AR20090013394



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ABCMR Record of Proceedings (cont)                                         AR20090013394



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