BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110012620 


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 that due to the time and circumstances during his tour in Vietnam, he became a victim of racial abuse by his superior who used his rank and an ink pen to get the desired results and actions from him.  He contends that documents pertaining to the mail were falsified and his mail was sent back to the sender informing them that his presence was unknown.  The issue with his mail was not known until the USO and the Red Cross contacted him regarding his family.  He further states that his superior's actions reflected profound racial issues and those of our country.  The endurance of racial issues caused him to act out of character and go absent without leave (AWOL) out of fear of being killed by his superior or his associates.  

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and three third-party statements.

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 27 June 1968 and upon completion of initial entry training was awarded military occupational specialty 94B (Cook).  

3.  He accepted nonjudicial punishment, while stationed at Fort Lewis, WA, on 
16 December 1969 for being AWOL during the period 4 - 15 December 1969.

4.  He arrived in Vietnam on 17 December 1969.

5.  He accepted nonjudicial punishment on the following dates:

	a.  31 March 1970 for disobeying a lawful order from his commanding officer and two instances of failing to go to his appointed place of duty;

	b.  18 May 1970 for failing to obey a lawful general regulation by being in an off-limits area;

	c.  10 June 1970 for failing to obey a lawful general regulation by being in an off-limits area and being absent from his place of duty without authority;

	d.  13 June 1970 for being absent from his place of duty without authority and disobeying a lawful order from a commissioned officer;

	e.  23 June 1970 for failing to obey a lawful general regulation by being in an off-limits area and breaking restriction;

6.  On 3 July 1970, his unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations) for unsuitability. The commander cited as the reasons for the proposed separation the applicant's unreliability, poor efficiency, continuous infractions of rules, and his inability to expand constructive effort.  On the same date, he was informed by his unit commander of the proposed separation action and the rights available to him.

7.  On 8 July 1970, after consulting with counsel, the applicant requested consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

8.  He accepted nonjudicial punishment on 19 July 1970 for two instances of disobeying a direct order from his commanding officer.

9.  On 7 August 1970, a separation board convened and recommended the applicant's separation from the service for unsuitability.  

10.  It appears the applicant departed AWOL prior to the conclusion of his discharge proceedings.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 25 October 1972, indicates the applicant departed AWOL on "19 June 1970" and was apprehended by military authorities on 
14 October 1972.

11.  On 1 February 1973, the applicant was found guilty, contrary to his plea, by a special court-martial of being AWOL from 16 November 1972 to 13 January 1973.

12.  He again departed AWOL on 5 April 1973.

13.  The applicant's charge sheet is not available.  However, on 11 June 1973, he consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He indicated in his request that he understood he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he might be deprived of many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

14.  His complete discharge proceedings are not available for review.  However, his DD Form 214 shows he was discharged on 9 July 1973 under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  His DD Form 214 also shows he accrued 1,042 days of time lost.

15.  There is no evidence in his Official Military Personnel File (OMPF) that substantiates his claim he suffered from racial abuse while in the military.

16.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 16 October 1974.

17.  The third-party statements provided make reference to his mail issues while in Vietnam and the steps his family took in order to establish contact with him while he was in Vietnam.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

19.  Army Regulation 635-200 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.

20.  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 discharge should be upgraded because the endurance of racial issues while in Vietnam caused him to act out of character and go AWOL has been carefully considered. 

2.  There is no evidence in his OMPF, and he provided none, that substantiates his claim of racial abuse while in Vietnam.  Additionally, his first AWOL offense 
(4 - 15 December 1969) occurred prior to his arrival in Vietnam.

3.  While a charge sheet is not available, it is assumed he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes nonjudicial punishment on seven occasions, a court-martial conviction, and 1,042 days of lost time.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  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)                                         AR20110012620



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ABCMR Record of Proceedings (cont)                                         AR20110012620



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