BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100020288 


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 an upgrade of his under other than honorable conditions discharge. 

2.  The applicant states at the time of his service, society was unfavorable to African Americans.  They were not treated equally and they were ridiculed by Soldiers of other races while leadership turned a blind eye.  Racial slurs provoked a fight and the fight ultimately led to his discharge.  He served his country and he dealt with the institutional racism.  He now needs medical benefits from the Department of Veteran Affairs but the character of service needs to be upgraded.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 records show he was inducted into the Army of the United States on 20 May 1970 and held military occupational specialty 13A (Field Artilleryman).  The highest rank/grade he attained during this period of military service was private first class/E-3.

3.  His records show he served in Vietnam from 12 January 1971 to 16 October 1971.  He was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with Device (1960).

4.  On 31 August 1970, he departed his Fort Sill, OK, unit in an absent without leave (AWOL) status but he returned to military control on 29 September 1970.

5.  On 15 October 1970, he was convicted by a special court-martial of one specification of being AWOL from 31 August to 29 September 1970.  The Court sentenced him to a forfeiture of $30.00 pay per month for 4 months and confinement at hard labor for 100 days.  The convening authority approved a reduced sentence of forfeiture and suspended confinement on 20 October 1970.

6.  On 28 May 1971, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for missing movement in Vietnam, traveling without proper authority in Vietnam, and absenting himself from his appointed place of duty.  His punishment consisted of a reduction to the lowest enlisted grade, a forfeiture of pay, and extra duty and restriction. 

7.  On 17 August 1971, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-201 (Personnel Separations) for unfitness.  He recommended an Undesirable Discharge Certificate.

8.  On 17 August 1971, he acknowledged receipt of the separation memorandum with an undesirable discharge and he was advised of his rights in connection with this action.  He acknowledged that he understood he could exercise any or all of his rights in writing and that a lawyer would be available to him for consultation.

9.  His records show he refused to sign the waiver form.  The form would have stated he consulted with legal counsel and would have been advised of the basis for the contemplated separation for civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  The form also stated he would have acknowledged he understood that he could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He also understood that as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life.  Finally, the waiver form gave him the option to accept or decline consideration of his case by a board of officers and appearance before a board of officers and the option to submit or decline submission of a statement on his own behalf.

10.  On 17 August 1971, his immediate commander initiated separation action against him under Army Regulation 635-212 for unfitness.  The immediate commander recommended an Undesirable Discharge Certificate.  He indicated the applicant had been a constant source of trouble in the unit.  He held five different positions during this period and in each position he displayed a lack of cooperation.  He was also enrolled in a drug amnesty program, but he walked out of this program.  He was counseled on numerous occasions but failed to respond to any rehabilitation efforts.  His discharge was in the best interest of the Army and the unit.

11.  On 7 September 1971, his intermediate commander recommended approval of the separation with the issuance of an Undesirable Discharge Certificate.

12.  On 16 September 1971, the separation authority directed a board of officers convene to determine if the applicant should be discharged for unfitness.

13.  On 4 October 1971, a board of officers convened at Phan Rang Air Base, Vietnam to consider if the applicant should be eliminated from the Army.  The applicant appeared in person with his appointed counsel.  The board found the applicant undesirable for further retention in the Army because of habits and traits of character manifested by frequent incidents of discreditable nature with military authorities and his drug abuse.  His rehabilitation was not deemed possible.  The board recommended his discharge for unfitness with the issuance of an Undesirable Discharge Certificate.

14.  On 8 October 1971, the convening/separation authority approved the findings and recommendations of the board of officers and ordered the applicant discharged for unfitness with an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  The applicant was accordingly discharged on 26 October 1971.  The DD Form 214 he was issued at the time shows he completed a total of 1 year, 4 months, and 9 days of creditable active military service and had 29 days of lost time.

15.  On 10 August 1977 and 7 August 1981, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

16.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

17.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy 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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant displayed habits and traits of character manifested by frequent incidents of discreditable nature with military authorities and his drug abuse.  Accordingly, his chain of command initiated separation action against him.  

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  The Board acknowledges the challenges encountered by several African American Soldiers at the time.  However, there is no evidence that his offenses of AWOL, drug use, missing movement, and other infractions were a result of his race.  Additionally, there is no evidence he encountered any more challenges than thousands of other African American Soldiers who served honorably and successfully completed their term of service.

4.  Based on his record of indiscipline, 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, he is not entitled to a general or an honorable discharge.

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)                                         AR20100020288



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ABCMR Record of Proceedings (cont)                                         AR20100020288



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