BOARD DATE:	  14 June 2011

		DOCKET NUMBER:  AR20100028502 


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 general discharge to an honorable discharge. 

2.  He states that he hates to say this, but his discharge was biased because of the color of his skin and this first lieutenant hated him, and said so more than once.  It was this first lieutenant's mission to have him kicked out of the service.  Where could he go in 1962?  He thinks it is time for him to ask that he be made whole again.  He did not deserve this treatment by the U.S. Government and by someone who was supposed to be an officer and a gentleman.  He was 18 years of age in 1959 when he joined the Army, race relations were terrible, and anything could be done to a person.

3.  He provides no 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.  The applicant's military records show he enlisted in the Regular Army, in pay grade E-1, on 1 June 1959, for 3 years.  He completed training and he was awarded military occupational specialty 111.17 (Light Weapons Infantryman).  He was advanced to pay grade E-3 on 9 February 1960.  He served in Okinawa from 10 June 1960 through 15 May 1962.

3.  He was reduced to pay grade E-2 on 21 March 1960 for misconduct	.  He was again advanced to pay grade E-3 on 17 September 1960.  He was again reduced to pay grade E-2 on 4 March 1961.

4.  On 25 April 1961, he was convicted by a summary court-martial of one specification of being incapacitated for the proper performance of his duties as a result of previous indulgence in intoxicating liquor on 21 April 1961.  His sentence of hard labor without confinement for 30 days and a forfeiture of $60.00 pay per month for one month was approved and ordered executed on 27 April 1961.

5.  On 27 January 1962, he was convicted by a summary court-martial of one specification of being drunk in a public place.  His sentence of confinement at hard labor for 30 days and a forfeiture of $60.00 pay per month for one month was approved and ordered executed on 29 January 1962.  

6.  On 25 April 1962, he was convicted by a summary court-martial of one specification of being found sleeping on post as a range guard on 20 April 1962.  His sentence of hard labor without confinement for 30 days, a forfeiture of $60.00 pay per month for one month, and a reduction to pay grade E-1 was approved and ordered executed on 26 April 1962.  

7.  On 23 January 1962, the applicant's unit commander recommended the applicant be eliminated from military service under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness).  The unit commander stated that the applicant had been a constant disciplinary problem since his assignment to that unit and after much counseling failed to heed any advice offered and remained a trouble maker.  The applicant had been counseled at all levels of command and was assigned to that unit in order to be given one more chance to straighten out.

8.  A DD Form 789 (Unit Punishment Record) shows he was punished for the following offenses:

* Being drunk and disorderly
* Failing to obey a lawful order
* Failure to repair and missing reveille
* Missing bed check
* Insubordinate conduct towards a noncommissioned officer (NCO)
* Being disrespectful towards an NCO
* Misconduct
* Disorderly conduct
* Breaking restriction
 
9.  A Neuropsychiatric Service Certificate, date 19 May 1962, found he had no psychiatric disease and possessed sufficient mental capacity to know the difference between right and wrong, should be able to adhere to the right, and refrain from the wrong.  He was considered to be mentally responsible for his acts and was able to understand and participate in board proceedings against him as may be deemed appropriate from the standpoint of the command.

10.  On 20 March 1962, the applicant's headquarters commander initiated action to eliminate the applicant from the service under the provision of Army Regulation 635-208.  The headquarters commander stated that the action was being taken because of the applicant's two summary courts-martial and twelve punishments under Article 15, Uniform Code of Military Justice and the applicant failing to correct his behavior.  

11.  On 7 April 1962, he acknowledged receipt of the proposed elimination action.  He also acknowledged the nature of discharge he could receive and that he understood the possible effect of receiving a discharge other than honorable. He waived his rights and elected not to submit a statement in his own behalf.

12.  On 30 April 1962, the separation authority approved the applicant's discharge because of unfitness and directed the issuance of a General Discharge Certificate.

13.  Accordingly, he was discharged in pay grade E-1 on 17 May 1962, under the provisions of Army Regulation 635-208, with a general discharge.  He was credited with completing 2 years, 10 months, and 25 days of active service and 22 days of time lost.

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

15.  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 an honorable discharge.

16.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), then in effect, set forth the basic policies and procedures for the separation of enlisted personnel.  It stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had three summary court-martial convictions for being incapacitated for the proper performance of his duties as a result of previous indulgence in intoxicating liquor, being drunk in a public place, and being found sleeping on post as a range guard.  His unit commander stated he was recommending the applicant for elimination from the service because of the constant disciplinary problems.  He also stated that the applicant had been counseled at all levels of command and was assigned to that unit and given one more chance to straighten out.  The applicant's headquarters commander cited the applicant's two summary courts-martial and twelve nonjudicial punishments as reasons for his elimination from military service.

2.  The evidence shows all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It appears that based on his overall record it was directed he receive a general discharge, as the characterization of service for this type of discharge was normally undesirable.

3.  His contentions were carefully considered; however, based on the available evidence, there is no basis for the upgrade of his discharge from general under honorable conditions to a fully honorable discharge.  He has submitted neither probative evidence nor a convincing argument to show his separation was unjust or biased based on race relations at the time and prevented him from completing his enlistment.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable discharge.  He was properly discharged and he has not shown otherwise.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

5.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20100028502





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ABCMR Record of Proceedings (cont)                                         AR20100028502



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