IN THE CASE OF:	  

		BOARD DATE:	  14 February 2012

		DOCKET NUMBER:  AR20110008128 


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 to a general discharge.

2.  The applicant states he was born fatherless and raised in the segregated housing projects of Chicago.  At 17 years of age he enlisted in the Army where he was exposed to white people at a much greater level than ever before.

	a.  In the late 1960's, the Army, like the country in general, was affected by racial tension and division.  The country was also involved in an unpopular war in Vietnam.

	b.  He states:

At the time, outside of a few school teachers, I’d never in my entire life been thrown into more than a brief contact with anyone who wasn’t black, and the only thing that I knew about any other race was what I heard on the radio or saw on television or in the movies. I didn’t anticipate any favorable treatment when I arrived [in the Army] but I also didn’t expect anyone to go to such great lengths to downplay my enlistment.  I was wrong!  Several Officers and a host of noncommissioned officers from the 5th Battalion, 68th Armor unit who were all members of the Good Old Boys club (white career Soldiers who always used the phrase “by god,” and considered themselves to be the white Army’s finest) conspired amongst one another to do just that.
	c.  He further states that many racial injustices within the Army at that time have since been rectified.  However, the injustice that was thrown upon him by his chain of command has denied him his veteran's benefits to this day.  They – his company commander, platoon leader, first sergeant, and platoon sergeant [all white] – worked in partnership to willfully perjure themselves to make things appear as they were not, and consequently led to him being separated from the Army with an undesirable discharge when he had only 40 days left on his enlistment before his expiration of term of service (ETS).

	d.  he alleges:

* his company commander relieved him without cause from the job he loved
* his company testified that he and other blacks in the company were under investigation for drugs, but of the 13 charges against him, he was exonerated of all except 3 for missing bed check
* his company commander and chain of command maliciously lied to discredit him as a troublemaker during testimony
* his company commander would not transfer him to another unit for fear that with a fresh start he would be able to fulfill the less that 6 months left on his enlistment
* his defense attorney pointed out during his board of officers hearing that he was not given the opportunity to rehabilitate as required by Army Regulation 635-212 (Personnel Separations Discharge Unfitness and Unsuitability)
* there was no mention of a request of waiver for rehabilitation in his separation packet that was presented to the board of officers
* that the president of the board of officers denied his counsel’s request for his reassignment based on rehabilitation rules given in Army Regulation 635-212
* he was frowned upon by his chain of command because he was an intercity black youth
* he was constantly put on KP (kitchen patrol) and harassed by white noncommissioned officers
* he was passed over for promotion while white Soldiers were advanced ahead of him
* that there is no documentation in his military record that shows
90 days were taken [sic]

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 born on 25 March 1950.  He enlisted in the Regular Army on 11 September 1967 for a period of 3 years.  He successfully completed training and he was awarded military occupational specialty (MOS) 70A (Basic Army Administration) and transferred to Germany.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on:

* 18 October 1967, for being absent from his place of duty from 1800 hours 15 October 1967 to 2150 hours 15 October 1967
* 23 January 1968, for consumption of alcoholic beverages in the enlisted barracks
* 4 June 1968, for failing to be at his appointed place of duty
* 10 August 1968, for disobeying a lawful order from a noncommissioned officer
* June 1969, for unknown reasons
* 6 May 1969, for being disrespectful towards a commissioned officer, for being drunk and disorderly, and for wrongfully and unlawfully obtaining release from guard duty
* 8 May 1969, for being absent without leave (AWOL) for the period 6 May 
1969 through 7 May 1969
* 20 June 1969, for failing to be at his appointed place of duty

4.  Evidence of record shows the applicant was AWOL for the period 
30 January 1969 through 10 February 1969.

5.  On 16 January 1970, the applicant underwent a psychiatric evaluation and he was found to have a passive-aggressive personality - character and behavior 

disorder.  The Medical Corps psychiatrist opined, “A 19 year old negro male referred by command for evaluation.  This individual handles his anger in a passive-aggressive and passive-resistant manner.  He feels he has been singled out as the command’s “scapegoat,” and therefore there is no use in even trying to change his attitude.  He feels he has received no breaks, he is not working in his MOS, and that this is all explainable on the basis of racial discrimination.  He fails to appreciate that his own behavior is a significant contributor.  He denies family or emotional problems.”  The psychiatrist concluded that much of the applicant’s problem may be situationally determined as he has reacted immaturely and contributed to his problems.  The psychiatrist recommended the applicant be transferred to a new battalion, and counseling deserves a trial in light of his approaching ETS.  Continued passive-aggressive behavior would necessitate administrative actions.

6.  On 24 February 1970, the applicant's commander initiated separation action on him under the provisions of Army Regulation 635-212 for unfitness.  The reason cited by the commander was the applicant had been given various duty assignments commensurate with his training and ability and had served under superior officers and noncommissioned officers.  In each instance, the applicant's performance of duty had been unsatisfactory.  The commander indicated that the applicant was counseled on the following dates for unsatisfactory job performance:  2 June 1969, 11 September 1969, 6 December 1969, 8 December 1969, 14 December 1969, and 14 January 1970.  The commander also stated the applicant’s military superiors agreed that further rehabilitation efforts would be useless.

7.  On 13 March 1970, the applicant was convicted by a special court-martial of three specifications of failing to go at the time prescribed to his appointed place of duty and failing to obey a lawful command from a superior officer.  His sentence consisted of hard labor for 21 days without confinement, forfeiture of $50.00 pay per month for 1 month, and reduction to the rank/grade of private (PV1)/E-1.

8.  On 31 March 1970, the applicant consulted with counsel.  He was advised of his rights and the effect of a waiver of those rights and of the basis for his separation under the provisions of Army Regulation 635-212.  The applicant indicated that he was counseled by appropriate counsel.  He requested counsel and a hearing by a board of officers.  He elected to provide a statement in his own behalf; however, the statement is not available for review.

9.  On 27 April 1970, the applicant was convicted by a summary court-martial of being absent from his unit on 10 April 1970, four specifications of absenting himself from reveille, and five specifications of absenting himself from bed check. His sentence consisted of confinement for 30 days, forfeiture of $109.00 pay per month for 1 month, and reduction to the rank/grade of private/E-1.

10.  On 3 June 1970, an administrative separation board was held and the board members found:

* the applicant was undesirable for further retention in the military service because of frequent incidents of a discreditable nature with military authorizes
* the applicant was found undesirable for further retention because of an established pattern of shirking
* that rehabilitation was not deemed possible for the applicant

The board members recommended the applicant be separated for unfitness and issued an Undesirable Discharge Certificate.

11.  On 15 July 1970, the appropriate authority waived rehabilitation reassignment and approved the applicant's discharge for unfitness under the provisions of Army Regulation 635-212.  On 22 July 1970, he was discharged with an undesirable discharge and a characterization of service of under other than honorable conditions.  He completed 2 years, 7 months, and 12 days of total active service with 91 days of time lost (non-creditable service) due to being AWOL and in confinement.

12.  On 27 September 1978, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 28 January 1980, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

13.  Army Regulation 635-212 set forth the policy and procedures for administrative separation of enlisted personnel for unfitness.  Paragraph 3a(1) provided that action will be taken when, in the judgment of the commander, it was clearly established that rehabilitation or development was impractical or was unlikely to produce a satisfactory Soldier.  Paragraph 6a(1) stated that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  Paragraph 7c(2) stated that the general court-martial convening authority may waive the requirements of 

counseling and rehabilitation when he determines that further duty of a individual will create a hazard to the military mission or to the individual.

14.  Army Regulation 635-200 (Active Duty Enlisted Administration 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was treated unfairly and discriminated against by whites in his unit.  However, there is no evidence in his military records and he has not provided any evidence that show he was treated unfairly or discriminated against.  The applicant had the opportunity during his board of officers to bring the allegations to light; however, there is no evidence he did so or sought assistance through chaplain or equal opportunity officials.

2.  The applicant further contends that he was not given the opportunity of rehabilitation to another unit and that there are no documents in his military records that show 90 days were taken on his DD Form 214.  The applicant underwent a psychiatric evaluation in January 1970.  The psychiatrist concluded that the applicant contributed to most his problems.  The psychiatrist recommended the applicant be transferred to a new battalion and counseling deserves a trial in light of his approaching ETS.  However, the applicant’s commander indicated that rehabilitation efforts would be useless, the board of officers recommended that rehabilitation was not deemed possible, and as such, the appropriate authority waived rehabilitation as was his right under regulatory guidance and approved the applicant’s discharge.

3.  The applicant’s record shows he received seven Article 15s, he was convicted by a special court-martial, he was convicted by a summary court-martial, and he had three instances of AWOL.  He completed 1 year, 7 months, and 12 days of 

total active service with 91 days of time lost due to being AWOL and in confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general discharge.

4.  The applicant's administrative separation was accomplished in accordance with applicable regulation with no indication of procedural errors that would tend to jeopardize his rights.

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

6.  Based on the foregoing, there is no basis for granting the applicant's 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)                                         AR20110008128



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ABCMR Record of Proceedings (cont)                                         AR20110008128



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