IN THE CASE OF:	  

		BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100029325 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that his discharge was under conditions other than honorable because the conditions at the time were hateful and racist.  He states he was drafted straight out of high school.  He decided to enlist while attending initial entry training which extended his active duty commitment from 2 years to 3 years.  He attests his father died and he was only granted 7 days of emergency leave whereas white Soldiers in similar situations were granted 30 days of leave and help from the Red Cross, which he was not provided.

3.  He attests that while he was on emergency leave he received assignment instructions for the Republic of Vietnam (RVN) and was only granted an additional 7 days of leave prior to having to report whereas white Soldiers were granted 30 days of leave.  He admits he was absent without leave (AWOL) for 45 days, but points out that a lot of men chose to dodge the draft by hiding out in Canada.  He states he did not run from his obligation to his country.  He returned to military control after being AWOL which resulted in appearing before a summary court-martial.  In spite of explaining to his commander that he was only AWOL so he could take care of his father's burial, the commander chose to give him the maximum punishment.  As a result, he was reduced to the lowest pay grade, fined 1 month's pay, and confined in a maximum security stockade doing hard labor.  He concludes that these conditions were other than honorable.

4.  He continues that after his confinement, he was shipped straight from the stockade to the RVN without even getting a chance to say goodbye to his family. 
He was not bitter and still remained a good Soldier.  While serving in the RVN he ran into the greatest injustice of all, racism and hate.  He attests that he was gassed and shot at by the very Soldiers he was supposed to be fighting alongside.  He contends that this was a grave injustice and these were definitely conditions other than honorable.  He attests he never committed a crime or did anything against his government or his country.

5.  He appeals to the Board to find it in the interest of justice to favorably consider his application because he was a good Soldier who did not ask to be put into a situation with so much hate and racism that it caused him to become a conscientious objector.  He is now 60 years of age and would like to get things straight in his life.  He attests that he is a law abiding citizen who loves his country.

6.  He contends we are now living in a time where this same hatred and racism is shown in the highest level of government.  We now have an African American president who has to put up with this same kind of hatred and racism from his peers and government and this shows that his adverse conditions in the RVN were valid.

7.  The applicant provides no additional evidence in support of his request.

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 was inducted into the Army of the United States on 6 November 1969 and honorably discharged on 12 November 1969.  He enlisted in the Regular Army on 13 November 1969.  Upon completion of initial entry training he was awarded military occupational specialty 76V (Equipment Storage Specialist).  He served a tour of duty in the RVN from 9 July 1970 to 7 January 1971.  The highest rank/pay grade he attained while serving on active duty was private first class/E-3.  However, at the time of his discharge, he held the rank/pay grade of private/E-1.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for being AWOL.

4.  His record also shows he appeared before a special court-martial and was found guilty for being AWOL for a period of 38 days.

5.  A DD Form 458 (Charge Sheet), dated 24 November 1970, shows he was charged with the following violations of the UCMJ:

* four specifications of violating Article 86 by failing to go at the prescribed time to his place of duty
* two specifications of violating Article 91 by willfully disobeying lawful orders from two superior noncommissioned officers

6.  On 18 December 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge the applicant indicated he understood by requesting discharge he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood if his 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 opted not to submit statements in his own behalf.

7.  The applicant's company, battalion, and brigade-level commanders all recommended approval of his request and the issuance of an Undesirable Discharge Certificate.  His company commander provided a detailed summary of his disciplinary history and opined that he was an extreme racist who tried to organize black Soldiers into grouping together and revolting against the military.  The commander stated the applicant claimed, "This is a white man's war and I won't have anything to do with it."

8.  On 31 December 1970, the separation authority approved the applicant's request and directed that he be reduced to the lowest grade and issued a DD Form 258A (Undesirable Discharge Certificate).

9.  On 8 January 1971, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, and issued an Undesirable Discharge Certificate.  He had completed 11 months and 20 days of creditable active military service.  He also was credited with 67 days of lost time.

10.  On 30 March 1973, The Adjutant General informed the applicant that after careful consideration of his military records and all other available evidence, the Army Discharge Review Board (ADRB) determined he was properly and equitably discharged.  Accordingly, his request for a change in the type and nature of his discharge was denied.

11.  On 30 April 1982, The Adjutant General informed the applicant that after careful consideration of his military records and all other available evidence, the ADRB had once again determined he was properly and equitably discharged.  Accordingly, his request for a change in the type and nature of his discharge was denied.

12.  The applicant's record is void of any evidence and he has not provided any evidence showing he was a victim of hate or racism.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.

14.  Army Regulation 635-200, 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.

15.  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 contention that his undesirable discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's allegation that he was a victim of hate or racism is not supported by evidence.  In fact, his company commander opined that the applicant was an extreme racist and when afforded an opportunity to submit statements in his own behalf, he declined to do so.

3.  His record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ on three occasions.  His record also shows he was found guilty of violating Article 86 of the UCMJ by a special court-martial.

4.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 
635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

5.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, the applicant's service prior to the offense is not sufficient to mitigate the misconduct that led to his final discharge.  Therefore, the applicant is not entitled to an upgrade of his discharge to either an honorable or a general characterization of service.

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)                                         AR20100029325



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ABCMR Record of Proceedings (cont)                                         AR20100029325



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