IN THE CASE OF:	  

		BOARD DATE:	  23 December 2010

		DOCKET NUMBER:  AR20100012064 


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 (UD) be upgraded to a general discharge (GD).

2.  The applicant states he was unjustly charged in a racially-motivated general court-martial (GCM) while serving in Vietnam.

3.  The applicant provides no additional evidence.

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 was inducted into the Army of the United States on 15 June 1966.  Upon completion of his initial entry training he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) 

3.  On 2 November 1966, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for dereliction.

4.  He was assigned to the Republic of Vietnam (RVN) on 8 January 1967.

5. On 26 May 1967, the applicant was advanced to specialist four (SP4/E-4).

6.  On 29 September 1967, while in the RVN, the applicant was convicted by a GCM of being absent without leave (AWOL) (Charge I) and of willful disobedience towards his superior commissioned officer (Charge II).  He was sentenced to a bad conduct discharge (BCD), reduction to private (PVT/E-1), a forfeiture of $75.00 pay for 12 months, and confinement at hard labor for 
12 months.

7.  On 26 April 1968, a Board of Review affirmed the AWOL charge, but set aside the willful disobedience charge and the entire sentence.  The Board of Review ordered a rehearing of Charge II and its specification and the sentence; and/or if impracticable, Charge II and its specification would be dismissed.  The convening authority was to direct a rehearing of or reassess the sentence alone.

8.  On 27 June 1968, during a rehearing, a GCM found the applicant guilty of Charge II and its specification and upheld the original sentence (also approved by the convening authority), without prior referral of the case to the original convening authority.  While these proceedings were awaiting appellate review, the applicant was restored to duty, having served the adjudged confinement and was transferred from Fort Leavenworth, Kansas to Fort Gordon, Georgia.

9.  On 17 June 1969, a Board of Review set aside the earlier rehearing proceedings as a nullity for want of jurisdiction.  Thereafter, a letter to the original convening authority (Commanding General, 4th Infantry Division in Vietnam) advised him of what action he might take.

10.  Item 44 (Time Lost Under Section 972, Title 10, USC) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he accrued 738 days of lost time between 17 December 1966 and 9 September 1969 as a result of being absent without leave (AWOL) and in confinement.


11.  On 20 August 1969, the unit commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 
635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness based on excessive AWOL.

12.  On 20 August 1969, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He further elected not to make a statement in his own behalf.

13.  On 28 August 1969, the applicant underwent a mental status evaluation that revealed no evidence of any mental condition which would warrant consideration for treatment, hospitalization, or other disposition through medical channels.  The examining psychiatrist determined the applicant possessed sufficient mental capacity to act in his own behalf and psychiatrically cleared him for administrative separation.

14.  On 17 September 1969, the separation authority approved the recommendation and directed that the applicant receive a UD.  On 26 September 1969, the applicant was discharged accordingly.

15.  The DD Form 214 issued to the applicant at the time confirms he completed a total of 1 year, 3 months, and 5 days of creditable active military service and that he accrued 738 days of time lost.

16.  On 19 February 1970, further inquiry was made concerning the original convening authority in the RVN regarding what action he contemplated taking in the applicant’s GCM case.  By GCM Order Number 7, Headquarters, 4th Infantry Division, dated 13 April 1970, dismissed Charge II and its specification and reassessed the sentence based on the approved findings of Charge I (AWOL) so that any punishment in excess of a BCD, reduction, confinement at hard labor for 6 months, and a forfeiture of $75.00 pay for 6 months were set aside.

17.  On 12 August 1970, the United States Army Court of Military Review, having reviewed the entire record, affirmed the guilty findings of Charge I and its specifications, dismissed Charged II and its specifications, and approved only that portion of the sentence that provided for confinement at hard labor for
6 months, a forfeiture of $75.00 pay for 6 months, and reduction to PVT/E-1.

18.  On 3 July 1975, after having carefully reviewed the applicant’s record and the issues he presented on two separate occasions, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable and denied his request for an upgrade of his discharge.

19.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an honorable discharge (HD) or GD if warranted by the member's overall record of service.  However, a UD was normally considered appropriate for members separating under these provisions.

20.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7b, provides that a GD 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 HD.  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 his UD should be upgraded to a GD because he was unjustly convicted by a racially-motivated GCM.  However, the evidence of record confirms the applicant was appropriately convicted by a GCM for the AWOL offense he committed that was reviewed through several appellate processes.

2.  The evidence of record confirms the applicant was properly advised by his commander that separation action was being initiated and that he was afforded the opportunity to consult with counsel and to be advised of his rights in connection with the separation action prior to completing an election of rights.

3.  The record further shows the applicant was counseled concerning his rights, and he voluntarily elected to waive his right to consideration of his case by a board of officers.  As a result, it is clear his 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.

4.  The applicant's record documents a disciplinary history that includes an NJP that he received before he went to Vietnam and a GCM conviction.  As a result, it is clear his UD accurately reflects the overall quality of his service.  It is also clear his record did not support the issuance of a GD by the separation authority at the time of his discharge and does not support an upgrade now.

5.  Furthermore, there is no evidence that the applicant's court-martial was racially motivated.
6.  In view of the foregoing, the applicant’s request should be denied.

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)                                         AR20100012064



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ABCMR Record of Proceedings (cont)                                         AR20100012064



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