IN THE CASE OF:	  

		BOARD DATE:	 21 September 2010 

		DOCKET NUMBER:  AR20100011299 


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 1964 discharge under other than honorable conditions be upgrade to a general discharge.

2.  The applicant states he was raised in a predominantly white town in Iowa and was subjected to all of the racial unrest of the 50's and 60's.  He states he joined the Army hoping to better himself and believing everyone would be treated equally.  He states at one point he attempted to secure a hardship discharge to return to Iowa to assist his aging parents, but no one seemed interested in helping him.

3.  He notes, however, he was subjected to racial jokes, stereotyping, harassment, and demeaning duties.  He states he is not saying his discharge was all the result of racism, although he knows it was, but blacks in the military at that time were given a large share of dishonorable discharges.  He notes that anyone viewing those records cannot help but agree.  He questions that if he were such a bad Soldier, how could he have been chosen for payroll guard and how was he promoted to pay grade E-3.

4.  The applicant provides a copy of his 1964 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a 1967 statement from the Veterans Administration in Des Moines, Iowa, which notes his 1964 discharge was under honorable conditions and he was entitled to benefits under the GI Bill.



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 on 20 July 1962 after receiving a waiver for two prior traffic offenses which included:

* abandoning a car and four tickets
* reckless driving, inadequate brakes, and no operator's license

3.  The applicant was 5 months shy of 19 years of age at the time of his enlistment and enlisted with his parent's consent.  He was a high school graduate and had aptitude scores which, with one exception, all exceed 100, including a general technical score of 119.  He successfully completed training and in December 1962 was assigned to Fort Bliss, Texas, as a clerk typist.  By March 1963, he had been promoted to pay grade E-3.

4.  In July 1963, the applicant was convicted by a special court-martial of being absent without leave (AWOL) between 4 May 1963 and 16 June 1963.  His sentence included confinement at hard labor for 4 months and forfeiture of $50.00 per day for the period of confinement.  He was also reduced to pay grade E-1 as a result of the court-martial conviction.  His confinement was served at the Center Stockade at Fort Bliss.

5.  In September 1963, the applicant apparently underwent some sort of mental status evaluation.  The entire evaluation was not in records available to the Board, but the second page of the evaluation recommended that the applicant receive a hardship discharge if all requirements were met or, if not applicable, that he be administratively separated under the provisions of Army Regulation 635-209 (Personnel Separations - Discharge - Unsuitability).

6.  Army Regulation 635-209, then in effect, set forth the policy and procedures for separation of enlisted personnel for inaptitude or unsuitability.  This regulation provided that when it was determined through proper board action that an individual could not be developed to the extent where he may be expected to absorb further military training and/or become a satisfactory Soldier, he will be discharged.  This regulation provided that a Soldier was to be discharged for unsuitability when it was determined he was unsuitable due to character or behavior disorders.  This regulation further provided that separation for unsuitability would be accomplished in cases of individuals manifesting such personality patterns when appropriate on the basis of adjustment, behavior, or performance in service and directed that an individual discharged for unsuitability would be furnished a General Discharge Certificate.

7.  In October 1963, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to make a mandatory formation while assigned to the Special Processing Detachment at Fort Bliss.  He was required to perform 7 days of extra duties as a result of the UCMJ action.

8.  By December 1963, the applicant had regained the rank of E-3 after being reassigned from the Special Processing Detachment back to his original organization at Fort Bliss where he was again assigned duties as a clerk typist.

9.  In January 1964, the applicant was punished under Article 15 of the UCMJ for having alcohol in his possession in contravention to Texas laws as a minor.  His punishment included reduction to pay grade E-2, which was suspended.

10.  By February 1964, his suspended reduction was vacated and the applicant was reduced.  The basis for vacating the suspense was not in records available to the Board.

11.  On 5 March 1964 the applicant was underwent a psychiatric examination which noted a previous evaluation had recommended either a hardship discharge or discharge under Army Regulation 635-209.  However, it was now noted that it was clear that a hardship discharge was not warranted in the applicant's case and that his passive-aggressive manner of reacting and his lack of motivation created difficulties for him.  The evaluating psychiatrist noted the applicant spent most of his time in the Army trying to figure out an easy way out and that his past performance and present attitude classified him as undesirable for retention in the service.  The evaluating psychiatrist recommended discharge under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) based on frequent incidents of a discreditable nature with authorities.

12.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual's military record was characterized by one of more of the following:  frequent incidents of a discreditable nature with civil or military authorities, drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana, an established pattern for shirking, or an established pattern showing dishonorable failure to pay just debts.

13.  Documents associated with the applicant's administrative separation were not in records available to the Board.  However, his DD Form 214 shows he was discharged on 14 April 1964 under the provisions of Army Regulation 635-208 after having been reduced to pay grade E-1.  His service was characterized as under other than honorable conditions.  He was credited with 1 year, 4 months, and 5 days of active Federal service with more than 140 days of lost time due to AWOL and confinement.

14.  Army Regulation 635-200 (Personnel Separations), 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's contention that his discharge was racially motivated is not supported by any evidence available to the Board or provided by the applicant.  The evidence shows he was convicted by a special court-martial for AWOL and punished twice under Article 15 of the UCMJ for infractions he was in a position to avoid.  He provided no evidence other than his self-authored statement that the extenuating circumstances regarding his race or upbringing was the reason he committed the offenses which led to his discharge.  In fact, the evidence shows the applicant was capable of honorable service as evidenced by his ability to rise to the grade of E-3 on two separate occasions.

2.  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.  Therefore, he is not entitled to a general under honorable conditions discharge.

3.  In the absence of evidence to the contrary, it is presumed the applicant's administrative separation under the provisions of Army Regulation 635-208 was accomplished in compliance with applicable regulations at that time.  There is no indication of procedural errors which would tend to jeopardize his rights.

4.  The applicant failed to show through the evidence submitted or the evidence of record that the type of discharge issued to him was in error or unjust.

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)                                         AR20100011299



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ABCMR Record of Proceedings (cont)                                         AR20100011299



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