IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100025636 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his previous rank/grade of staff sergeant (SSG)/E-6.

2.  The applicant states he does not seek financial remuneration; it is an issue of pride and justice.  He was discharged and reduced in rank as a result of racial prejudice.  He had attained the rank/grade of SSG/E-6 within 3 years of enlistment and had planned to make the Army a career.  After Vietnam, while suffering from post-traumatic stress disorder, he was assigned to a unit that was staffed with the most racially-biased individuals he had ever encountered so he left the unit and went home.  He had even gone to the Pentagon to get out of that unit, but he was informed that this unit was in dire need of his rank and position.  He was assigned to a private first class (PFC)/E-3 position as an SSG/E-6.  He was then assigned to a Pershing missile battalion with a reputation of reducing all black noncommissioned officers to a lower rank.  He is sorry he could not take the harassment and left.  He believes his reduction was based solely on his skin color.

3.  The applicant did not provide any 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.  Having prior enlisted service, the applicant's records show he reenlisted in the Regular Army for a period of 6 years on 23 November 1964 and he held military occupational specialty 54E (Chemical Staff Specialist).  He served in Vietnam for 1 year and attained the rank/grade of SSG/E-6.

3.  On 25 August 1970, he was convicted by a general court-martial at Fort Gordon, GA, of one specification of being absent without leave (AWOL) from on or about 13 November 1968 to on or about 25 August 1970.  The court sentenced him to confinement at hard labor for 10 months, forfeiture of $50.00 pay per month for 6 months, reduction to the lowest enlisted grade, and a dishonorable discharge (suspended until 29 April 1971).

4.  On 27 October 1971, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) at Fort Jackson, SC, for being AWOL from 22 to 25 October 1971.  His rank is shown as PFC.

5.  On 19 November 1971, he departed Fort Jackson, SC, in an AWOL status.  He was apprehended by civil authorities on 7 January 1972 and he returned to military control at Fort Jackson, SC, on 27 January 1972.

6.  On 27 January 1972, his command preferred court-martial charges against him at Fort Jackson, SC, for one specification of being AWOL from on or about 19 November 1971 to on or about 27 January 1972.  The charge sheet shows his rank as Private, E-2 (PV2).

7.  On 27 January 1972, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).
8.  In his request for discharge which shows his rank as private (PV2)/E-2, he indicated he understood by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood if the discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further declined to submit a statement on his own behalf.

9.  On 27 January and 2 February 1972, his immediate and intermediate commanders recommended approval of his discharge with the issuance of a discharge under other than honorable conditions.

10.  On 4 February 1972, the separation authority approved the applicant's voluntary request for discharge in lieu of trial by a court-martial in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the lowest enlisted grade.  On 9 February 1972, he was accordingly discharged.

11.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form further shows he completed 5 years, 8 months, and 1 day of creditable active military service and he had 889 days of lost time.

	a.  Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) show his rank/grade as private (PVT)/E-1.

	b.  Item 6 (Date of Rank) shows his date of rank as 2 February 1972.

12.  His DD Form 214 also shows he was awarded the Purple Heart (1st Oak Leaf Cluster), Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), one overseas service bar, Army Good Conduct Medal, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

13.  On 23 November 2001, as a result of ABCMR action, he was issued a clemency discharge pursuant to Presidential Proclamation Number 4313 and his service was re-characterized as under honorable conditions (general).  His original DD Form 214 was voided and he was reissued a new DD Form 214 that reflects the new character of service.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

15.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  Chapter 2 of the regulation in effect at the time contained guidance on the preparation of the DD Form 214.  It stated that items 5a and 5b showed the Soldier's rank and grade at the time of separation and item 6 showed the date of rank.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  With respect to his rank/grade, the evidence of record shows that when his voluntary discharge in lieu of a court-martial was approved, the separation authority directed his reduction to the lowest enlisted grade.  His original DD Form 214, therefore, correctly shows his rank/grade as PVT/E-1 at the time of discharge.

3.  It is acknowledged that during his period of service racial tension may have been present.  However, his discharge was not due to racial tension; it was due to his voluntary request in lieu of trial by a court-martial due to his AWOL.  Furthermore, his overall record reflects a history of AWOL throughout his military service.  In view of the foregoing evidence, he is not entitled to correction of his DD Form 214 to show the rank/grade of SSG/E-6.

4.  However, prior to his reduction to PV1 as a result of his approved under other than honorable conditions discharge, he held the rank/grade of PV2/E-2.  When the previous ABCMR decision upgraded his character of service to general, his rank/grade should have been restored to PV2/E-2.  Therefore, he is entitled to correction of his DD Form 214 to show his rank/grade at the time of his discharge as PV2/E-2.  His PV2 date of rank, however, is unknown.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

* deleting from items 4a, 4b, and 12h (Effective Date of Pay Grade) of his DD Form 214 the entries "PVT," "E-1," and "1972  02  04, respectively"
* adding to items 4a, 4b, and 12h the entries "PV2," "E-2," and "unknown," respectively

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to restoration of his rank and grade as a SSG/E-6.



      ____________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)                                         AR20100025636



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ABCMR Record of Proceedings (cont)                                         AR20100025636



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