IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110002397 


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, upgrade of his undesirable discharge.

2.  The applicant states he entered the U.S. Army during a turbulent time of racial upheaval and discrimination.  He states his "Article 15's" (nonjudicial punishment (NJP)) were for defending his ethnic and religious heritage.  He states he was "stationed with a majority of 'Good OLD BOYS' who did not like blacks or Jews."  He states he wanted to be a driver in the motor pool, but no one showed him or told him how to become one.  While on temporary duty (TDY) he went to the motor pool, drove a jeep around the block, and brought it back.  He states he was court-martialed for inappropriate use of a military vehicle.  He served
3 months in the stockade for this incident.  He adds that after he danced with a Caucasian girl at a club he was "setup" leading to his arrest by the Criminal Investigation Division (CID) after he picked up a mess knife from the floor in the restroom.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 of the United States on 25 July 1961.  He completed initial entry training and he was awarded the military occupational specialty of an ammunitions helper.  He was promoted to the rank/grade of private (PV2)/E-2.

3.  His record contains a DA Form 26 (Record of Court-Martial Conviction).  This document shows that on:

* 21 February 1962, he was convicted by a summary court-martial of being absent without leave (AWOL) from his unit from 6 February to 10 February 1962
* 21 June 1962, he was convicted by a summary court-martial of unlawfully carrying a concealed weapon on 18 June 1962
* 10 October 1962, he was convicted by a special court-martial of wrongfully appropriating a 1/4 ton truck on 28 August 1962, the property of the U.S. Government

4.  On 21 December 1962, a psychiatric evaluation was administered on the applicant.  The evaluation revealed no evidence of any mental diseases or defects sufficient to warrant separation through medical channels.  As part of the pertinent history the psychiatrist indicated the applicant was court-martialed for being AWOL for five days, for carrying a concealed weapon which he explained was carried for a friend, and for driving a jeep without authorization and proceeded to damage it seriously.  It was recommended that no further attempt at rehabilitation of the applicant be made since it was believed that he was useless to the service, and he could not be rehabilitated to the extent where he may be expected to become a satisfactory Soldier.

5.  On 17 July 1963, the applicant's detachment commander notified him of the intent to discharge him under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness) based on the applicant's previous convictions and continued misconduct.  He stated the applicant's conduct was far below the service standards and warranted his elimination from the service.


6.  The record contains a signed statement by the applicant wherein he acknowledged he was counseled and advised of the basis for his recommended discharge under the provisions of Army Regulation 635-208.  He acknowledged that he had been forwarded a copy of the commander's report and supporting documents attached thereto supporting the recommendation for his discharge, and the names of prospective witnesses to appear or submit statements that would be used against him.  He further acknowledged he was afforded the opportunity of requesting counsel; however, he declined the opportunity.  He also waived his right to appear before a Board of Officers and elected not to submit a statement in his own behalf.

7.  On 18 July 1963, the applicant's group commander recommended approval of the applicant's separation with an Undesirable Discharge Certificate.

8. On 22 July 1963, the next higher commander, a brigadier general, recommended approval of the applicant's discharge with an Undesirable Discharge Certificate due to him being involved in an altercation with another Soldier where he was found to be carrying a concealed weapon (sharpened mess-gear knife) and because he violated his parole agreement by going from the Post Stockade on 1 April until he was returned on 18 May 1963.

9.  On 16 August 1963, the separation authority, a lieutenant general, directed the applicant's discharge from the service under the provisions of Army Regulation 635-208 for unfitness and directed the applicant be furnished an Undesirable Discharge Certificate.  He also directed the reason and authority for separation on his DD Form 214 will be shown Army Regulation 635-208, SPN (separation program number) 26B (Unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities.)

10.  On 4 September 1963, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-208 with an SPN of 28B and issuance of a DD Form 258A (Undesirable Discharge Certificate).  This form also shows he completed 1 year, 6 months, and 20 days of total active service with 200 days of time lost.

11.  There is no evidence the applicant sought assistance through his chain of command, Inspector General, Equal Opportunity office, or any other available supporting agency concerning any racial, ethnic, or religious issues.

12.  On 2 November 1972, the Army Discharge Review Board denied the applicant's request for an upgrade of his undesirable discharge.

13.  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 honorable discharge, when it had been determined that an individual's military record was characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts.

14.  Army Regulation 635-200 (Personnel Separations), 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 contends the nonjudicial punishment he received was for defending his ethnic and religious heritage.  However, his record shows he was convicted on three occasions by either a summary or a special court-martial for unlawfully carrying a concealed weapon, being AWOL, and wrongfully appropriating a military jeep.

2.  He was discharged under the provisions of Army Regulation 635-208 for unfitness.  His record shows he had a total of more than 6 months of time lost.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.


3.  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.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110002397



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ABCMR Record of Proceedings (cont)                                         AR20110002397



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