BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090021651 


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, the following:

* upgrade of his under other than honorable conditions discharge to honorable
* correction of item 7a (Race) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show "Black"
* correction of item 7e (Height) of his DD Form 214 to show 73 inches
* correction of item 33 (Permanent Address for Mailing Purposes After Transfer of Discharge) of his DD Form 214 to show Blackshear, Georgia

2.  The applicant states:

* he is a black man, not "N/A"
* he has never lived in Miami, Florida
* he was discharged to live in Blackshear, Georgia
* the Army exposed him to nerve gas
* he was exposed to asbestos in Army barracks and needs medical services
* he is 6 feet and 1 inch tall

3.  The applicant provides copies of his driver's license, social security card, and DD Form 214.



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 was inducted into the Army of the United States on 5 February 1963 and served in military occupational specialties 111 (Light Weapons Infantryman) and 94B (Cook).

3.  His DA Form 24 (Service Record) shows in section 6 (Time Lost Under Section 6(a), Appendix 2b, Manual for Courts-Martial, 1951, and Subsequent to Normal Date of Expiration of Term of Service) that he was absent without leave (AWOL) during the following periods:

* 2 June 1963 to 11 June 1963 (10 days)
* 8 July 1963 to 24 September 1963 (79 days)
* 2 February 1965 to 8 February 1965 (7 days)
* 6 May 1965 to 9 May 1965 (4 days)

4.  His DA Form 24 also shows in section 6 that he was confined during the following periods:

* 25 September 1963 to 12 November 1963 (49 days)
* 23 February 1965 to 5 May 1965 (72 days)
* 10 May 1965 to 10 August 1965 (93 days)

5.  The record shows the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for the following:

* on 17 June 1963, for absenting himself from his unit from 2 June 1963 through 12 June 1963
* on 25 May 1964, for disobeying a lawful order
* on 16 January 1965, for failing to go at the time prescribed to his appointed place of duty

6.  A DA Form 26 (Record of Court-Martial Conviction) shows the applicant was twice convicted by special courts-martial of being AWOL during the periods 8 July 1963 to 25 September 1963 and 2 February 1965 to 9 February 1965.  For the first conviction, he was sentenced to confinement at hard labor for 6 months (suspended) and forfeiture of $28.00 per month for 6 months.  For the second conviction, he was sentenced to confinement at hard labor for 6 months, forfeiture of $28.00 per month for 6 months, and reduction to the lowest enlisted grade.

7.  A Commander's Report of Inquiry, dated 20 May 1965, shows the applicant escaped from the stockade on 6 May 1965 and was dropped from the rolls as a deserter.

8.  The complete facts and circumstances of the applicant's discharge are not contained in the available records.  However, his records contain a duly-constituted DD Form 214 for the period ending 19 August 1965.  This DD Form 214 shows he was discharged under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness, Frequent Incidents of a Discreditable Nature with Civil or Military Authorities) and his service was characterized as under conditions other than honorable.

9.  The applicant's DD Form 214 also shows the following:

* in item 7a, NA
* in item 7e, 74 inches
* in item 33, 424 N___ Drive, Miami, Dade County, Florida
* in item 34 (Signature of Person Being Transferred or Discharged), the applicant's signature

10.  A Standard Form 88 (Report of Medical Examination) completed at the time of the applicant's induction shows his height as 71 inches.  A Standard Form 88 prepared at the time of his discharge shows his height as 71 1/2 inches.  A DA Form 20 (Enlisted Qualification Record) shows his height is 6 feet and 2 inches (74 inches).

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness.  The regulation stated that individuals would be discharged by reason of unfitness with an undesirable discharge when it had been determined that an individual's military record was characterized by frequent incidents of a discreditable nature with civil or military authorities, unless the particular circumstances in a given case warranted a general or honorable discharge.

13.  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.

14.  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.

15.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It states the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of discharge.  The version of the regulation in effect at the time specified the entry "NA" would be made in item 7a.  The regulation further stated to use the current height in item 7e or, if the individual was not present, to use the height indicated in the records.  The information provided in item 33 was to be furnished by the individual at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests for upgrade of his discharge and correction of his DD Form 214 were carefully considered and found to be unsupported by the evidence.

2.  There is no evidence of record and the applicant has provided no evidence showing he was improperly discharged.  The evidence does include a properly-constituted DD Form 214 showing he was discharged for unfitness.

3.  Based on his record of indiscipline which includes 314 days of time lost due to AWOL and confinement, two convictions by special courts-martial, and three nonjudicial punishments, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general or honorable discharge.
4.  At the time of his discharge, the Army regulation governing separation documents specified the entry "NA" would be placed in item 7a.  This is the entry in item 7a of his DD Form 214.  Accordingly, he is not entitled to correction of item 7a of his DD Form 214.

5.  The applicant's record shows three different heights on four documents.  The applicant states he is 73 inches tall, which matches none of the heights shown in his record.  There is no documentary evidence indicating which height is correct.  In the absence of such evidence, there is no basis for correcting item 7e of his DD Form 214.

6.  Although the applicant states he has never lived in Miami, Florida, there is no documentary evidence indicating the information in item 33 of his DD Form 214 is incorrect or that he provided different information at the time the form was prepared.  The applicant also signed his DD Form 214, indicating he had reviewed the information on the form.  Therefore, he is not entitled to correction of item 33 of his DD Form 214.

7.  There is no evidence of record and the applicant has provided no evidence to suggest he was ever exposed to nerve gas or asbestos during his military service.  If the applicant has evidence of exposure, he may submit documentation to the Department of Veterans Affairs for review.

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)                                         AR20090021651



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ABCMR Record of Proceedings (cont)                                         AR20090021651



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