IN THE CASE OF:	  

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090016483 


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 dishonorable discharge be upgraded to honorable.

2.  The applicant states, in effect, that a Soldier of the same rank gave him an order and he told the Soldier to have a private take care of it.  He states the Soldier reported him and then he quickly found himself ousted out of the Army.  He further states that he was young and immature when he entered the Army.  He acknowledges, in effect, that he acted immature, that he was absent without leave (AWOL), and that he spent time in the military stockade.  He also states that it was his opinion that racial conflict existed within his unit and the Army.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a personal statement, and a character reference letter 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 enlisted in the Regular Army on 13 July 1961.  He completed basic combat training, advanced individual training, and was awarded military occupational specialty 630.00 (Auto Maintenance Helper).  He was 17 years old, a minority, and had completed only 10 years of school and did not have a high school diploma or equivalent degree when he entered the Army.  His record contains an original copy of a DD Form 373 (Consent, Declaration of Parent or Legal Guardian) that was signed by his mother and step-father consenting to his 3-year enlistment in the Regular Army.  Records show the highest rank and grade he satisfactorily attained was private first class (PFC)/E-3.

3.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions from 22 September 1962 to 7 May 1963.  The NJP's were for failure to repair at the time prescribed to his appointed place of duty, for being absent without leave (AWOL), and for possession of a dangerous weapon.

4.  The applicant was tried by four summary courts-martial during the period 17 November 1962 to 21 May 1964.  The specifications were for two periods of AWOL, for failure to go at the time prescribed to his appointed place of duty, for disobeying the lawful orders from a superior noncommissioned officer, for breaking restriction, and for being disrespectful in language toward a superior noncommissioned officer.  He also was convicted by one special courts-martial for being AWOL and disobeying a lawful order from a superior noncommissioned officer.

5.  On 26 May 1964, the applicant signed an affidavit wherein he acknowledged that he had been counseled and advised of the action being recommended against him.  He acknowledged that he did want to have his case heard by a board of officers.  He did not waive a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he did not waive representation by counsel.  He concluded by stating he did not desire to submit statements on his own behalf.

6.  On 11 June 1964, the applicant was given a psychiatric examination by the division psychiatrist, a captain of the Medical Corps.  The examiner stated the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in military separation board proceedings.  Further, he stated he found no disqualifying mental defects sufficient to warrant disposition through medical channels nor was a psychiatric disease apparent at the time of the examination.  The examiner granted psychiatric clearance for any administrative or disciplinary action deemed appropriate to the applicant's case by his command.  In view of the applicant's attitude in 1964, the psychiatrist stated the applicant would not improve from his current level of performance efficiency.

7.  On 26 May 1964, the applicant's commander recommended that he be eliminated from the service under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) with an undesirable discharge.  The commander stated that the applicant had a history of four summary courts-martial and one special court-martial.  The commander stated two different unit commanders had counseled the applicant and that he was placed under the supervision of several noncommissioned officers with negligible improvement.  The commander stated that all attempts for rehabilitation of the applicant had been to no avail and the applicant was unfit for further military service for his current conduct rating was unsatisfactory and his efficiency rating was unsatisfactory. 

8.  On 21 July 1964, a board of officers was convened to consider the applicant for separation under the provisions of Army Regulation 635-208.  The board findings and recommendations were that sufficient cause did exist to discharge the applicant from the U.S. Army and that the applicant did not present sufficient evidence to the board in his own behalf to defer discharge.  In addition, the board recommended he be discharged with an undesirable discharge.  The appropriate approval authority approved the findings and recommendations of the board.

9.  On 15 September 1964, a captain of the Medical Corps certified that the applicant met the retention standards of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), with no mental or physical defects and that the applicant was medically qualified for separation.

10.  On 1 October 1964, the appropriate authority approved the recommendation for an undesirable discharge and directed the applicant be reduced to the lowest enlisted grade and that he be issued an Undesirable Discharge Certificate.

11.  On 16 October 1964, the applicant was discharged under the provisions of Army Regulation 635-208 for involvement in frequent incidents of a discreditable nature with civil or military authorities and issued an Undesirable Discharge Certificate.  He had completed 1 year, 6 months, and 4 days of net active service with 174 days of lost time under the provisions of Title 10, U.S. Code, section 972.

12.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 25 May 1982, the ADRB reviewed and denied the applicant's appeal to upgrade his discharge. 

13.  In support of his application, the applicant provided a character reference letter from an adult female who stated, in effect, that the applicant is a good man and that under the circumstances of the racial tensions in the early 1960's, he behaved badly.  She asks that the ABMCR favorably consider the applicant's request and upgrade his discharge.

14.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness.  Unfitness included frequent incidents of a discreditable nature with military or civilian authorities, sexual perversion, drug abuse, use of marijuana and an established pattern of dishonorable failure to pay just debts.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was young and immature at the time and that there was racial strife in his unit that hindered his ability to adequately perform as a Soldier.  While he was 17 years old when he enlisted, his contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that he satisfactorily completed training and was promoted to the rank/grade of PFC/E-3.  His satisfactory performance during his first year of service demonstrates his capacity to serve and shows that he was neither too young nor immature at the time of his discharge.

2.  A review of the applicant's record of service included conviction by four summary courts-martial and one special court-martial.  In addition, he accepted nonjudicial punishment on three separate dates.  With this established record of misconduct, the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

3.  There is no evidence that the applicant's separation was not in compliance with the applicable regulation in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.
4.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge from under other than honorable conditions to an honorable 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 that 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)                                         AR20090016483



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016483



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1