IN THE CASE OF:	  

		BOARD DATE:	  13 April 11

		DOCKET NUMBER:  AR20100024942 


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 he was not afforded proper counsel to assist him in the charges filed against him.  In May 1968 he was involved in a civil court action.  The military did not converse with him and the Army did not represent him.  He states that if he had been a white male Soldier, he would have had military representation or counsel.  The results were not in his favor and he was issued a discharge under other than honorable conditions as a result.  During his first enlistment he was injured in a military vehicle from which he has been painfully suffering.  For this and other reasons, he is requesting a general under honorable conditions discharge.

3.  The applicant provides:

* self-authored statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 30 August 1965
* DD Form 214 for the period ending 18 September 1969
* WD AGO Form 53-55 (Enlisted Record and Report of Separation – Honorable Discharge) pertaining to his father for the period ending 31 December 1945
* DD Form 214 (Certificate of Release or Discharge from Active Duty) pertaining to his brother for the period ending 30 June 1990
* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 29 April 2009
* VA Form 21-4138, dated 13 May 2009
* VA Form 21-4138 from a third-party, dated 12 May 2009

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 for a 3-year term on 31 August 1964.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  On 30 August 1965, he was honorably discharged for the purpose of immediate reenlistment.

3.  His record shows he reenlisted in the Regular Army for a 4-year term on 31 August 1965.

4.  On 21 March 1968, he was convicted by a special court-martial for wrongfully and unlawfully attempting to induce a fellow Soldier, a private, to engage in an act of sexual intercourse with another Soldier, also a private, in exchange for a $10.00 payment.  He was sentenced to reduction to the rank of private first class/E-3 and forfeiture of $100.00 pay for 5 months.

5.  On 12 July 1968, the Phelps County Circuit Court, State of Missouri, found him guilty of robbery in the first degree.  On 24 July 1968, he was sentenced to confinement in the State Penitentiary for a period of 5 years.

6.  His commander notified him he was recommending his discharge under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) based on his conviction and sentence by civil court and that he could receive an undesirable discharge.  His commander also advised him of his right to a hearing before a board of officers, of the applicable waiver provisions, and of his right to submit written statements in his own behalf.  He was informed of his right to counsel and that military counsel would be made available to him or that he could employ civilian counsel at no expense to the U.S. Government, if so desired.

7.  On 2 June 1969, he acknowledged receipt of the notification of separation action for his civil conviction and:

* he requested appointment of military counsel to represent him and for counsel to present his case before a board of officers in his absence
* he elected to submit a written statement in his own behalf
* he did not intend to appeal his civil conviction

8.  On 27 August 1969, his case was heard before a board of officers who considered the information presented and who came to the unanimous decision that the applicant should be eliminated from the service and should receive an undesirable discharge.  The board record of proceedings shows the applicant was represented by Captain B____, his appointed military counsel.

9.  The Commander, U.S. Army Training Center, Engineer, and Fort Leonard Wood, Fort Leonard Wood, MO, the authorized separation authority in the applicant's case, reviewed the board proceedings and approved the recommendation by the board of officers.  The commander directed that the applicant be discharged for conviction by civil court under the provisions of Army Regulation 635-206 and that he be issued an Undesirable Discharge Certificate.

10.  On 18 September 1969, he was discharged under the provisions of Army Regulation 635-206, section VI, under other than honorable conditions based on misconduct.  His DD Form 214 shows he completed 3 years, 7 months, and 29 days of total net active service.  Item 30 (Remarks) shows he had 486 days of lost time.  The highest rank/pay grade he attained while serving on active duty was sergeant/E-5.

11.  There is no documentation in the available record and he has not provided any documentation to substantiate his subjection to racial discrimination during his military service.

12.  There is no documentation in the available record and he has not provided any documentation to substantiate that he incurred an injury during his service in Germany.

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

14.  He provides:

	a.  a self-authored statement in which he alleges racial discrimination on the part of the Army manifested in the characterization of his discharge and the Army's failure to properly document the injuries he incurred during service.  He contends he did not have military counsel during his discharge proceedings;

	b.  WD AGO Form 53-55 pertaining to his father and a DD Form 214 pertaining to his brother;

	c.  a VA Form 21-4138, dated 29 April 2009, in which he states he was injured in an armored personnel carrier (APC) accident in Germany in 1965 in which he injured his knees and was treated at a field medical center;

	d.  a VA Form 21-4138, from J____ L. T____, dated 12 May 2009, in which he affirms his friendship with the applicant and states that while on a field exercise in Germany, the applicant lost control of his APC and drove it into a house, thereby injuring his knees.  J____ L. T____ states the applicant was treated at a field first aid station and released to his unit.  J____ L. T____ does not claim to have been present during this incident, stating he lost contact with the applicant after they departed basic training in August 1964; and

	d.  a VA Form 21-4138, dated 13 May 2009, in which he contends J____ L. T____ has knowledge of his previous knee injuries.

15.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  It provided that an undesirable discharge was normally considered appropriate for members separated under this regulation.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), the current regulation governing enlisted separations, 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.

17.  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 applicant's request for upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant's contention that he suffered racial discrimination manifested in the characterization of his discharge and the Army's failure to appoint him military counsel and the Army's failure to properly document the injuries he incurred during his service in Germany is noted; however, the evidence of record does not support his contentions.

3.  His record reveals an extensive disciplinary history that included his punishment by special court-martial and his incarceration by the State of Missouri.  Given this record of misconduct and the civil conviction that ultimately led to his discharge, his overall record of service did not support the issuance of an honorable or a general under honorable conditions discharge by the separation authority at the time of his discharge and does not support an upgrade at this time.

4.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of undistinguished service.

5.  In view of all of the foregoing, there is no basis for granting the 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 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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20100024942



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