IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100021593 


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 his undesirable discharge be upgraded to honorable or general.

2.  The applicant states:

* he was a victim of racial discrimination while serving in Vietnam
* he felt like he was fighting two wars, a war to protect his country and a racial war
* he was ordered to see a psychiatrist and undergo an evaluation
* The psychiatrist found no abnormalities
* he was given an Article 15 for not saluting an officer, but he did not see him
* he was reported for asking for an extra pork chop
* he was given a second Article 15 for damaging government property (he slammed a door, a clock fell from the wall and broke)
* he tried to break up a fight and was convicted by a special court-martial of assault
* he has a medical history that leads to a path of mental health, sleeping disorder, diabetes, and high blood pressure
* racism played a major factor in his discharge from the Army

3.  The applicant provides a copy of 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 military records are not available for review.  However, this case is being considered using reconstructed records which primarily consist of his DD Form 214.

3.  His DD Form 214 shows he was inducted into the Army of the United States on 26 July 1967.  He was awarded military occupational specialty 52B (generator repairman) and he served in Vietnam.

4.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records.  

5.  His DD Form 214 shows he was discharged on 14 May 1969 with an undesirable discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), but it also shows he was separated for unsuitability due to character and behavior disorders (separation program number (SPN) 264).  He completed a total of 11 months and 21 days of creditable active service with 298 days of lost time.

6.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

7.  Army Regulation 635-212, in effect at the time, set forth the policy and prescribed procedures for eliminating enlisted personnel for unfitness and unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier and he met retention medical standards.  Unsuitability included inaptitude; character and behavior disorders; apathy, defective attitudes, and inability to expend effort constructively; alcoholism; and enuresis.  A general under honorable conditions or an honorable discharge was considered appropriate depending on the member's overall record of service.

8.  Army Regulation 635-200 sets forth the basic authority 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  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.  

DISCUSSION AND CONCLUSIONS:

1.  No evidence shows he was a victim of racial discrimination.

2.  The applicant's DD Form 214 does show an inconsistency.  It  shows he was discharged with an undesirable discharge under the provisions of Army Regulation 635-212, but it also shows he was separated for unsuitability due to character and behavior disorders.  If the reason for separation is correct, he should not have received an undesirable discharge.

3.  However, the applicant's records, and in particular his separation packet, are not available.  Therefore, it cannot be determined if the error is in the type of discharge given, or the reason for discharge.  In the absence of those records and his separation packet it is not possible to determine if the requested relief should be granted.

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 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)                                         AR20100021593



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ABCMR Record of Proceedings (cont)                                         AR20100021593



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