IN THE CASE OF:  

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110012335


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 honorable.

2.  The applicant states, in effect, he was treated unjustly due to his race.  He performed well in basic training and really wanted to be a good Soldier because he loved the Army.  However, he went to Fort Sill, OK for advanced individual training, he acknowledged that he was a "negro," and gradually things changed. He began to feel ostracized by both whites and blacks.  When he went to Fort Campbell, KY, things progressed.  He volunteered for Vietnam and he was turned down.  He felt he was being blamed for everything.  He became very self conscious and depressed and did not care anymore.  He was rebellious and just wanted out of the Army.  He was put in the brig for allegedly tearing up the radio on the back of a jeep, which he did not do.  He was placed in the brig another time, but does not remember why.  When they were finally letting him out of the Army, he didn't want to wait on paperwork so he signed for an undesirable discharge.  

3.  The applicant provides a copy of 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 enlisted in the Regular Army on 9 November 1965.  He completed training and was awarded military occupational specialty (MOS) 13A (Basic Field Artilleryman).  He subsequently completed basic airborne training. 

3.  The applicant's DA Form 20 (Enlisted Qualification record) shows in:

	a.  item 41 (Awards and Decorations) he was awarded the Parachutist Badge and National Defense Service Medal; and 

	b.  item 44 (Time Lost) four entries reflecting a total of 80 days of lost time due to being absent without leave (AWOL) and in confinement. 

4.  A psychiatrist's statement, dated 13 September 1966, shows the following mental status evaluation:  "Subject presented a well developed, well nourished, young man with long curly black hair and a suggestion of Negro culture in his speech.  He was angry, not depressed.  His speech was spontaneous, relevant and coherent...  There was no evidence of thinking disorder or severe neurosis.  From the history, he appears impulsive, and exhibits poor judgment.  He is not patriotic and is not motivated for service."

5.  The applicant was found guilty:

	a.  on 20 December 1966, by summary court-martial for being AWOL from 
9-12 December 1966; and 

	b.  on 3 April 1967, by special court-martial for being disrespectful in language towards a noncommissioned officer, assault on a noncommissioned officer, and being AWOL from 14-27 February 1967.  

6.  On 27 April 1967, the applicant acknowledged he had been advised by counsel of the basis for the contemplated separation action for unfitness under Army Regulation (AR) 635-212 (Discharge-Unfitness and Unsuitability).  He waived consideration of his case by a board of officers, representation by counsel, and he did not elect to submit a statement in his own behalf.  He also acknowledged that he understood he could expect to encounter substantial prejudice in civilian life in the event he was issued an undesirable discharge.  He also acknowledged he understood that he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.

7.  On 17 May 1967, the applicant's commander recommended separation with an undesirable discharge.  The commander stated the discharge was recommended due to his habits and traits of character manifested by repeated commission of petty offenses and habitual shirking.  The commander also lists several rehabilitation reassignments, a record of counseling, and two court-martial convictions.

8.  On 2 June 1967, the applicant's company commander requested the rehabilitation transfer be waived in the applicant's case because the applicant expressed a very strong desire to be discharged.  The commander indicated the applicant had been a continuous problem and it would not be in the best interest of the Army to retain him.

9.  The battalion and brigade commanders recommended approval of the discharge recommendation.

10.  On 21 July 1967, the appropriate authority approved the recommendation for discharge under the provisions of AR 635-212, due to unfitness, with the issuance of an Undesirable Discharge Certificate.  

11.  Accordingly, the applicant was discharged on 31 July 1967.  He had completed 1 year, 7 months, and 1 day of creditable active service and he had 81 days of lost time due to being AWOL and in confinement.

12.  On 23 January 1974, the Army Discharge Review Board denied his request for an upgrade of his discharge.  In his statement to the ADRB, he indicates that his trouble started when he arrived at his regular unit.  At first he pulled a lot of kitchen police because the company was a training company at Fort Benning, GA.  When the company returned the sergeant asked him if he would mind doing the same duties for a little while longer while the company got straightened out.  He eventually told the sergeant that he had been doing these duties since he arrived at the unit and he wouldn’t mind a little rest.  The sergeant told him he didn't care.  The applicant answered him in a smart way.   After that it seemed like everyone was against him.  He never made any rank and got so he didn't care anymore.   

13.  AR 635-212 provided, in pertinent part, that an individual was subject to separation for unfitness when one or more of six conditions existed.  These included repeated commission of petty offenses and habitual shirking.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

14.  AR 635-200 (Personnel Separations - Enlisted) sets forth the basic authority for the separation of enlisted personnel.  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.  AR 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 his undesirable discharge should be upgraded due to the unjust treatment he received as a result of his race.

2. The applicant has provided no evidence to substantiate his contention that he was treated unjustly due to this race.  The statement from the psychiatrist and the applicant's statement to the ADRB clearly reflect inconsistencies in his assertion that he received unjust treatment due to his race.  His two court-martial convictions and record of counseling clearly show repeated commission of petty offenses and habitual shirking. 

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.


4.  Therefore, in view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his discharge.

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)                                         AR20100016226



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ABCMR Record of Proceedings (cont)                                         AR20110012335



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