IN THE CASE OF:	  

		BOARD DATE:	  28 July 2011

		DOCKET NUMBER:  AR20100029573 


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, in effect, an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states:

* the lost time shown in item 25a (Non-Pay Periods Time Lost) on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) is wrong
* he has been trying for 40 years to get the lost time removed from his record
* he was told that if he signed his discharge papers, within 1 year his undesirable discharge would be upgraded to a general discharge
* he went home for 14 days to care for his mother after he was given emergency leave by his first sergeant and he overstayed his time at home by 1 day
* the whole time he was in advance individual training, he was given all the dirty details by his platoon sergeant
* he was written up once for asking why he had to get inside a dumpster and pick up cigarette butts, and once for being absent without leave (AWOL) when he was at sick call
* he went before the company commander and was given 30 days in the stockade



* almost every black man in the stockade was sent there by the same guy and his company commander and first sergeant were later sent to another post because they did not like blacks
* he has been trying for 15 years to have his discharge upgraded

3.  The applicant provides:

* An undated, self-authored letter
* DD Form 214
* Letters from the Army Review Boards Agency, Chief, Case Management Division, dated 13 April and 13 May 2010
* A letter from the Chief, Army Discharge Review Board Branch, dated 12 December 1995
* A letter from the Department of Veterans Affairs (VA) Medical Center, dated 10 December 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 was inducted into the Army on 27 June 1968.  He completed basic combat training.

3.  He was convicted, pursuant to most of his pleas, by four special courts-martial and one summary court-martial of being AWOL and willfully disobeying lawful orders from commissioned and non-commissioned officers.  His DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) shows his AWOL dates as follows:

* 9 October to 22 October 1968
* 4 December to 10 December 1968
* 1 May to 19 May 1969

4.  The applicant's DA Form 20B also shows that as a result of his court-martial convictions, he was sentenced to:

* confinements at hard labor
* forfeitures of pay
* reduction in pay grade

5.  The applicant received nonjudicial punishment (NJP) on 16 June 1969, for willfully disobeying a lawful order from his superior noncommissioned officer.  His punishment consisted of extra duty.

6.  The applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-212, for unfitness.  He acknowledged receipt of the notification on 25 August 1969.  After consulting with counsel, he waived to submit a statement in his own behalf.  He indicated he understood he may expect to encounter substantial prejudice in civilian life in the event of the issuance of a general or an undesirable discharge.  

7.  The appropriate authority approved the recommendation for discharge on 8 October 1969.  On 23 October 1969, the applicant was discharged under the provisions of Army Regulation 635-212, due to unfitness.  He had completed 8 months and 17 days of total active service.  He received an Undesirable Discharge Certificate.

8.  There is no evidence in the available records showing that he was mistreated by members in his chain of command because he is black.

9.  Item 26a on the DD Form 214 he received shows the following non-pay periods time lost dates:

* 9 October through 21 October 1968
* 4 December through 9 December 1968
* 11 December 1968 through 18 May 1969
* 7 August through 12 September 1969

10.  Item 30 (Remarks) on his DD Form 214 reads "205 days lost under 10 U.S.C. 972."

11.  On 20 July 1977, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.



12.  On 15 July 1987, the U.S. Army Reserve Personnel Center issued him a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) amending item 30 on his DD Form 214 by deleting the entry "205 Days Lost Under 10 U.S.C. 972" and adding "215 Days Lost under Title 10 U.S.C. 972/Nothing Follows."

13.  On 10 December 2009, the applicant received a letter from the Department of VA Medical Center informing him that the character of his discharge constitutes a bar to VA Benefits.

14.  Army Regulation 635-212 (Discharge, Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  The regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit forming drugs or marijuana, an established pattern for shirking, or an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort was unlikely to succeed.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), provides:

	a.  Paragraph 3-7a, 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.

	b.  Paragraph 3-7b, 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 contentions have been noted.  His supporting evidence has been considered.  

2.  There is no evidence in his record, nor has he submitted any showing his was mistreated by members in his chain of command because he is black.

3.  His record shows he was convicted by four special courts-martial and one summary court-martial as a result of going AWOL and disobeying orders.  Each time he went AWOL and his court-martial sentence included confinement, it is lost time.  He submits no evidence showing that the lost time dates shown on his DD Form 214 are incorrect.

4.  The applicant was issued a DD Form 215 amending item 30 to read he had 215 days of lost time, instead of 205 days.  He has not provided evidence to the contrary.

5.  He was court-martialed on five separate occasions and received NJP as a result of his acts of misconduct.  The fact that he has a bar to VA benefits is not a basis for upgrading his discharge.

6.  In view of the foregoing, his request should be denied.

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)                                         AR20100029573





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ABCMR Record of Proceedings (cont)                                         AR20100029573



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