IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100011585 


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 upgrade of his undesirable discharge (UD).

2.  The applicant states while serving he was the victim of racial discrimination and he went absent without leave (AWOL) because he was afraid of racial issues.

3.  The applicant provides a Congressional inquiry packet containing seven character reference letters from North Carolina officials, a sheriff, a church pastor, and two attorneys.  

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's record shows he enlisted in the Regular Army on 19 February 1965.  He was trained in and awarded military occupational specialty 36K (Field Communications Crewman).  He was promoted to specialist four/E-4 on 28 June 1966, and this is the highest rank he attained while serving on active duty.  His record shows he was reduced to private/E-1 on 4 August 1967.

3.  The applicant's record shows he earned the National Defense Service Medal during his active duty tenure.  His record documents no acts of valor or significant achievement.

4.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:

* 15 February 1966, for sleeping on guard duty
* 4 September 1965, for being absent from his unit without proper authority
* 19 October 1966, for failing to go at the time prescribed to his appointed place of duty

5.  The applicant’s record also shows he accrued 172 days of time lost due to three separate periods of AWOL between 2 December 1966 and 30 June 1967.

6.  The unit commander notified the applicant of his intent to recommend his separation for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) and the applicant consulted with legal counsel on 1 August 1967.  Counsel advised the applicant of the basis for the contemplated separation action, its effects, and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant waived his right to have his case considered by a board of officers, personal appearance before a board of officers, and counsel.  He also elected not to submit statements in his own behalf.

7.  The unit commander recommended the applicant's separation under the provisions of Army Regulation 635-212 by reason of unfitness due to the applicant’s frequent incidents of a discreditable nature with military authorities and his incompatibility with military life.  The commander stated since the applicant’s arrival in the unit, he had talked of only one thing which was his desire to get out of the service.  The commander stated the applicant was willing to do anything necessary to accomplish this goal.  He also stated the applicant’s attitude was the worst he had seen since he had been in the Army.

8.  The commander also noted the applicant had been rehabilitatively reassigned from Headquarters Battery to B Battery within the command on 12 December 1966, and went AWOL in January 1967.  He further stated one could expect a task assigned the applicant would be performed in substandard manner.  The commander further stated alternate disposition such as discharge for unsuitability was not appropriate.

9.  On 11 August 1967, the separation authority approved the applicant's discharge and directed he receive a UD.  On 30 August 1967, the applicant was discharged accordingly.   The DD Form 214 he was issued at the time shows he completed 2 years and 23 days of creditable active service and he had accrued 172 days of time lost due to AWOL.

10.  The applicant provides seven character references that all attest to his good post-service character and citizenship.

11.  On 13 March 1968, the Army Discharge Review Board (ADRB), after determining the applicant’s discharge was proper and equitable, unanimously voted to deny his appeal for an upgrade of his discharge.

12.  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:  

* because of frequent incidents of a discreditable nature with civil or military authorities
* sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child
* drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana
* an established pattern of shirking
* an established pattern of dishonorable failure to pay just debts
* 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.

13.  Army Regulation 635-200 currently sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b provides that a general, under 


honorable conditions 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded because he was the victim of racial discrimination have been carefully considered.  However, while any allegations of racial prejudice are taken seriously, there is no evidence of record or independent evidence submitted by the applicant that supports his assertion that he was the victim of racial discrimination while serving on active duty.

2.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant consulted with counsel and was fully advised of the basis for the contemplated discharge and of its effects.

3.  The applicant's record documents no acts of valor or significant achievement and reveals an extensive disciplinary history that includes his acceptance of NJP on three separate occasions and his accrual of 172 days of time lost due to AWOL.  As a result, the UD he received accurately reflects the overall quality of his service.

4.  Although the applicant’s excellent post-service conduct is noteworthy, as evidenced by the supporting character references he submitted, his overall record of service did not support the issuance of a GD at the time of his discharge and it does not support an upgrade now.

5.  In view of the above, there is no basis for graining the applicant's requested relief.

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)                                         AR20100011585



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ABCMR Record of Proceedings (cont)                                         AR20100011585



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