IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100012632 


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, an upgrade of his general discharge to an honorable discharge.

2.  The applicant states:

* his first 3 years of service were honorable
* he did not know how to deal with the racial animosity he encountered on a daily basis
* the racial attitudes were from both officers and enlisted personnel
* he was very young and immature
* he was a victim of institutional racism when he was in the U.S. Army

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a letter to the President dated 22 March2010
* a letter from the Army Discharge Review Board (ADRB), Chief, Administrative Division dated 26 July 1983
* a letter to the Army Review Boards Agency (ARBA) dated 24 March 2010





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 born on 19 August 1941.  After completing 2 years, 10 months and 8 days of total active honorable service, the applicant reenlisted in the Army for 6 years on 20 April 1964.

3.  The applicant was convicted by both summary and special courts-martial of speaking disrespectfully to a noncommissioned officer and for being absent without leave (AWOL) on the following dates:

* 1 August 1964 until 3 August 1964
* 17 August 1964 until 19 August 1964
* 24 August 1964 until 11 September 1964

4.  A board of officers convened on 29 October 1964 to determine if the applicant should be recommended for discharge prior to the expiration of service because of unfitness.  The board found him unfit for retention in the Army and they recommended that he be discharged from the service under the provisions of Army Regulation 635-208 (Personnel Separation - Discharge - Unfitness) for unfitness and that he be issued an undesirable discharge.   The board based its recommendation on:

* his periods of AWOL
* fights with other individuals
* his failure to cooperate with other Soldiers
* his attitude in general

5.  The board noted that during the hearing, the applicant's attitude was one of belligerency, inattentiveness, and unconcern.



6.  The appropriate authority approved the recommendation for discharge and on 17 December 1964, the applicant was discharged under the provisions of Army Regulation 635-208, for unfitness, due to frequent incidents of a discreditable nature with civil or military authorities.

7.  On 1 March 1976, the ADRB upgraded the applicant's undesirable discharge to a discharge under honorable conditions (general).

8.  The applicant submits a letter to the President contending racial discrimination of "Black Veterans" in the Department of Veterans Affairs healthcare system, in Pittsburgh, Pennsylvania.  In the letter to ARBA, he states that he went AWOL because of institutional racism and because he was too young and stupid to know how to fight.

9.  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, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined that an individual's military record was characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts.

10.  Paragraph 3-7a of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were considered and are not supported by the available evidence.




2.  There is no evidence in the available record nor has the applicant submitted any evidence that shows he was discriminated against when he was in the Army. He had already completed almost 3 years of prior active service and he was approximately 23 years old when he went AWOL and began the series of events that led to his discharge. 

3.  The applicant was court-martialed twice while he was in the Army and considering the nature of his offenses, the type of discharge he currently has properly reflects his record of service as his service was not fully honorable.

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)                                         AR20100012632



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ABCMR Record of Proceedings (cont)                                         AR20100012632



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