IN THE CASE OF:	  

		BOARD DATE:	  15 March 2012

		DOCKET NUMBER:  AR20110016892 


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 an upgrade of his discharge under other than honorable conditions.

2.  The applicant states he was discharged while serving confinement in isolation for over 10 days because his chain of command was racially prejudiced.  He was forced to sign discharge papers to get out of isolation.  He believes that a white Soldier in his situation would have received a discharge for mental reasons.  He desires to appear before the Army Board for Correction of Military Records (ABCMR) so he can argue his case.  He further states:

	a.  He was in confinement for less than 30 days, yet his DD Form 214 states "37 days lost under Title 10, U.S. Code, section 972."

	b.  Since it is recorded that his date of entry was 26 May 1961, the reported "37 days lost" would put his number of days in the Army under 180.  This is important since the rules/laws are not the same as for under 180 days.

	c.  All the official statements in his records, dated 18 November 1961, indicate there was a combined effort to have him discharged.  Additionally, all the statements were made by white Soldiers and officers.

	d.  Never in his life has anyone ever stated that his personal hygiene or appearance was anything less than commendable.  He takes great pride in his personal appearance.

	e.  The charges against him for stealing military equipment are ridiculous.  All the Soldiers he was with had equipment with different serial numbers.  Their equipment was transported on trucks and people just grabbed the first items they came across.

	f.  He did get in a fight with a white Soldier over a game of pool when the Soldier tried to steal all the money they bet after losing the pool game.  However, he did not hit him with his fist; he beat him with the pool stick.

	g.  Orders identifying him as Negro are clear proof that he was the victim of racial prejudice.

3.  The applicant provides:

* letter from his Member of Congress
* two letters to his Member of Congress
* self-authored statement
* seven official statements, dated 18 November 1961
* DD Form 493 (Extract of Military Records of Previous Convictions), dated 27 November 1961
* Special Orders Number 178, dated 25 July 1961
* Fort Benning (FB) (AHJ) Form 142 (Supplemental Personnel Data – Board Action)
* two-page excerpt from an Army Discharge Review Board (ADRB) case, dated 1 September 1971
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* six-page excerpt from Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)

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 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's records contain a DA Form 2281-R (Application for Determination of Moral Eligibility), dated 17 May 1961.  This form shows he was arrested for fighting in January 1960 and for running away from home and drunkenness in February 1960.  He was tried in juvenile court for these offenses and sentenced to the boys department for 10 days and to attend a boy's industrial school.  He was also sentenced to confinement from 15 January 1960 to 16 February 1960.

3.  Item 12 (Remarks) of the DA Form 2281-R notes he was neat in appearance and cooperative when interviewed.  The reason for his misconduct was most likely due to the lack of a proper home life and presence of a father.  He was recommended for military service based on the impression that he could satisfactorily adjust to military life.

4.  His records show he enlisted in the Regular Army on 26 May 1961.  He completed basic combat and advanced individual training and was awarded military occupational specialty 131.00 (Armor Crewman).  He was assigned to Fort Benning, GA, from 19 August 1961 to 20 December 1961.  The highest rank/grade he attained while serving on active duty was private/E-2.

5.  He provides Special Orders Number 178, dated 25 July 1961, reassigning him for training and identifying his race as Negro.

6.  His records contain a DA Form 789 (Unit Punishment Record).  This form shows he was punished on 21 October 1961 for failure to show up at formation on 18 October 1961.  It is unclear if this punishment was imposed as nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).

7.  His records contain a 3rd Army Area Form 215 (Personal History Statement of Accused).  This form shows his company commander stated he felt the applicant could be rehabilitated at this time.

8.  His records contain a DA Form 458 (Charge Sheet), dated 25 October 1961.  He was charged with one specification of disobeying an order by failing to properly sign out in the pass register before going off post on 22 October 1961 and one specification of appearing at a gas station in an improper uniform (fatigues) on that same date.  He was not offered NJP under Article 15.

9.  On 25 October 1961, he was found guilty of all charges pursuant to his pleas by a summary court-martial for one specification of disobeying an order by failing to properly sign out in the pass register before going off post and one specification of appearing at a gas station in an improper uniform (fatigues).  He was sentenced to confinement at hard labor for 30 days (suspended), forfeiture of $50.00 per month for 1 month, and reduction to private/E-1.  The convening authority approved his sentence on 25 October 1961.

10.  On 13 November 1961, Summary Court-Martial Order Number 5, Headquarters, 2nd Medium Tank Battalion, 69th Armor, 2nd Infantry Division, Fort Benning, ordered the suspended sentence to confinement at hard labor vacated and the unexecuted portion of the sentence at hard labor duly executed.  The order further directed the applicant's confinement in the post stockade.

11.  His records contain a Standard Form 88 (Report of Medical Examination), dated 13 November 1961, showing he received a medical examination for the purpose of separation proceedings.  He was referred for a psychiatric evaluation; however, the medical authority stated there were no physical or medical defects which would warrant a medical disposition and indicated he was qualified for separation.

12.  His records contain a DA Form 458, dated 14 November 1961.  He was charged with:

* charge 1, specification 1 – wrongfully appropriating a helmet liner valued at $2.25
* charge 1, specification 2 – wrongfully appropriating the following property of a total value of $54.75:

* one shelter half valued at $5.65
* one sleeping bag valued at $26.05
* one sleeping bag cover valued at $5.95
* one air mattress valued at $6.20
* three tent poles valued at $1.00
* five tent pegs valued at $0.25
* one tent rope valued at $0.10
* one pair of field trousers valued at $6.00
* one cargo pack valued at $2.35
* one mess kit valued at $1.20

* charge 2 – assaulting another Soldier by striking him with his fist

13.  On 14 November 1961, he was found guilty of all charges by a summary court-martial.  He was sentenced to confinement at hard labor for 1 month and forfeiture of $50.00 pay per month for 1 month.  The convening authority approved his sentence on 18 November 1961.

14.  Summary Court-Martial Order Number 22, dated 18 November 1961, directed 30 days of confinement at hard labor and forfeiture of $50.00 per month for 1 month.

15.  His records contain a letter from a psychiatrist at Headquarters, 2nd Infantry Division, Mental Hygiene Consolation Service (MHCS), Fort Benning, dated 16 November 1961.  The letter contains a report of the applicant's psychiatric evaluation and states:

	a.  The applicant's difficulty with legal authorities was prominent prior to his entry in the Army.  He entered active duty in May 1961 as an alternative to punitive measures by legal authorities.

	b.  His military duty was characterized with inefficiency and/or ineffectiveness and impulsive behavior, such as assault.

	c.  He is awaiting court-martial for larceny and disobedience of lawful orders.  It is for this reason his unit felt he was incompatible with effective military duty and referred him to MHCS.

	d.  He was diagnosed with moderate antisocial reaction manifested by a disregard for social reputation and an inability to profit from experience.  His predisposition to moderate stress was minimal and his impairment was moderate.

	e.  The psychiatrist found he was not insane, possessed sufficient mental capacity to distinguish between right and wrong, and was considered mentally responsible for his acts.  His mental condition represented a basic character and behavior disorder and was not amenable to hospitalization, treatment, disciplinary action, training, or reclassification.  There were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.

	f.  The psychiatrist recommended his separation from the service for unfitness as expeditiously as possible under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) based on this diagnosis.

16.  His records contain four DA Forms 19-24 (Statement) and three official statements from various officers and noncommissioned officers in his unit recommending his separation from the Army.  These statements essentially state:

* he has been a problem Soldier
* he has been counseled on numerous occasions to no avail
* his contentiousness toward duty performance was unsatisfactory
* his appearance, military bearing, attitude, and attention to duty were poor
* he does not cooperate with squad and section leaders or other Soldiers
* he stated, in effect and on more than one occasion, he was designing his actions to get out of the Army
* he is unfit for military service
* he is unable to adjust to military life
* his personal hygiene and equipment are below the standards of a Soldier
* he was found to be missing equipment during an inspection which reappeared upon a subsequent inspection – and he admitted to stealing a sleeping bag, helmet liner, and cargo pack upon questioning
* he was involved in an assault against a fellow Soldier
* he had previous AWOL charges
* he needs constant praise and attention
* he resents being given orders
* he is consistently late or missing from formations
* he has previous punishment under Article 15 and two courts-martial
* he was recommended for separation

17.  On 28 November 1961, he was notified of his commander's intent to initiate separation action against him under the provisions of Army Regulation 635-208 for unfitness, and informed of his rights.  He completed an FB Form Letter (FL) Form 47 (Actions Under the Provisions of Army Regulation 635-208) acknowledging he was fully aware of the fact that an Undesirable Discharge Certificate may be issued to him.  He indicated his choice to have a hearing before a board, he requested counsel, and he indicated he did not intend to submit statements in his own behalf.

18.  He also acknowledged he – of his own free will in the presence of his counsel – understood that an undesirable discharge may be issued to him, such a discharge would be under conditions other than honorable, as a result of this discharge he may be deprived of many or all rights as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life in situations where the type of service rendered in any branch of the Armed Forces or the type of discharge received may have a bearing.

19.  On 28 November 1961, his commander submitted a request for discharge for unfitness under the provisions of Army Regulation 635-208, paragraph 3a.  The commander states the unit attempted rehabilitation on several occasions through counseling and moving him to two different duty positions.  The commander indicated he did not agree that separation under Army Regulation 635-209 (Personnel Separations – Discharge – Unsuitability) was feasible or appropriate because "the individual is a discipline problem, adaptability to military life does not apply."  The commander additionally states the applicant's conduct and efficiency ratings were unsatisfactory.

20.  On 8 December 1961, after having been advised by his legal counsel of separation action against him under the provisions of Army Regulation 635-208 for unfitness and informed of his rights, he completed a new FB FL Form 47 acknowledging he was fully aware of the fact that an Undesirable Discharge Certificate may be issued to him.  He reversed his decision to have a hearing before a board of officers and instead choose to waive his rights to a hearing and submission of a written statement on his own behalf.

21.  His records contain Letter Orders Number 12-2, dated 8 December 1961, approving a board hearing and appointing a board of officers.

22.  On 18 December 1961, Summary Court-Martial Order Number 8, Headquarters, 2nd Medium Tank Battalion, 69th Armor, 2nd Infantry Division, Fort Benning, ordered remittance of only the unexecuted portion of the sentence to confinement promulgated in Summary Court-Martial Order Number 22 effective 20 December 1961.

23.  On 18 December 1961, the separation authority approved his discharge under the provisions of Army Regulation 635-208 and directed the issuance of an Undesirable Discharge Certificate.

24.  On 19 December 1961, Summary Court-Martial Order Number 9, Headquarters, 2nd Medium Tank Battalion, 69th Armor, 2nd Infantry Division, Fort Benning, ordered remittance of only the unexecuted portion of the sentence to confinement promulgated in Summary Court-Martial Order Number 18 and amended by Summary Court-Martial Order 5 effective 20 December 1961.

25.  On 20 December 1961, he was discharged accordingly.  His DD Form 214 shows he received a discharge under other than honorable conditions by reason of unfitness.  He completed 5 months and 15 days of net service with 37 days of lost time due to confinement.

26.  His records contain a self-authored letter, dated 22 December 1961.  He stated he was discharged from the Army without a proper hearing before a board of officers.  He further stated he signed a form requesting a board hearing but never received one.

27.  His records contain a letter of reply from The Adjutant General (AG) of the Army, dated 6 February 1962.  The AG's reply references the letter the applicant sent on 22 December 1961 and states:

The records show that on 28 February 1961, your commanding officer recommended that you be eliminated from military service under the provisions of paragraph 3a, Army Regulation 635-208, by reason of unfitness.  On the same date you executed FB FL Form 47, requesting a hearing before a Board of Officers.  Approval was granted on 8 December 1961, for your appearance before a Board of Officers; however, you completed a new FB FL Form 47 on 8 December 1961, waiving such a hearing.

28.  On 15 November 1971, the ADRB considered his request to upgrade his discharge.  The ADRB determined he was properly and equitably discharged and denied his request.

29.  He provided two self-authored statements as evidence in this case.  He stated that his discharge was due to the racial conditions that existed in the Southern United States and within the Army and Army personnel.  Racial prejudice was directed at him and other black enlisted men.  He experienced more racial prejudice in Fort Benning and the surrounding areas in Georgia than he had ever experienced anywhere else, in or out of the Army.

30.  Army Regulation 635-208, chapter 3 in effect at the time, stated individuals would be discharged by reasons of unfitness with an undesirable discharge when it had been determined that an individual's military record was characterized by frequent incidents of a discreditable nature with civil or military authorities unless the particular circumstances in a given case warranted a general or honorable discharge.

31.  Army Regulation 635-208, chapter 5 in effect at the time, stated it recognized that all enlisted personnel with behavior problems could not be rehabilitated by proper leadership and/or psychiatric assistance.  It was inevitable that a certain percentage of individuals entering the service subsequently would demonstrate defective moral habits, irresponsibility, inability to profit from experience, untrustworthiness, lack of regard for the rights of others, and inability to put off pleasures and impulses of the moment.  Often these individuals showed poor performance despite intelligence, superficial charm, and a readiness to promise improvement.  The effective leader was able to rehabilitate only that percentage of persons with behavior problems who were amenable to leadership.  The main objective of this regulation was efficient utilization of manpower.  Retention or elimination of an individual was based on whether he was capable of rehabilitation into a useful Soldier.  Discharge was an appropriate procedure for an individual whose behavior rendered him repeatedly vulnerable to punitive and other adverse personnel actions.

32.  Title 10, U.S. Code, section 972 (Members:  Effect of Time Lost), states an enlisted member of an Armed Force who is confined by military or civilian authorities for more than 1 day in connection with a trial, whether before, during, or after the trial; or is unable for more than 1 day, as determined by competent authority, to perform his duties is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted.

33.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7, 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.

34.  Army Regulation 635-200, paragraph 3-7, 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.

35.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-11, states that applicants do not have a right to a formal hearing before the ABCMR.  The Director of the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues he was discharged while serving in confinement because his chain of command was racially prejudiced, he was forced to sign discharge papers to get out of isolation, and a white Soldier in his situation would have received a discharge for mental reasons.

2.  The civil rights movement was long and tenuous for groups of oppressed people.  It is a fact that some people in society were and are racially prejudiced; however, alleging his discharge occurred because of racial prejudice 50 years after it occurred is exceedingly difficult to prove without providing substantial and conclusive evidence that his chain of command discharged him because they were racially prejudiced.

3.  He provided orders identifying him as Negro.  He argues that this is clear proof that he was the victim of racial prejudice.  However, it was the Department of the Defense's policy to identify African American Soldiers as Negro on official military documents at the time.  While this administrative practice of only identifying the Negro race is no longer used, it was considered administratively correct at the time of his service.  This administrative practice in and of itself does not constitute direct and specific racial prejudice directed against him by his chain of command.

4.  There is no evidence in his record and he failed to provide any evidence that shows he was forced to sign discharge papers to get out of isolation.

5.  His argument that a white Soldier in his situation would have received a discharge for mental reasons is speculation and he provided no proof or evidence to support this argument.  His records show he was considered for separation under such conditions, but his commander deemed them to be inappropriate because his diagnosis was consistent with the characteristics identified as reason for discharge under Army Regulation 635-208, paragraph 3a, and the psychiatrist found there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels.

6.  His argument that his 37 days of lost time would put his number of days in the Army at less than 180 and, therefore, entitle him to a different type of discharge is incorrect.  Lost time, simply stated, means a Soldier is unable to perform duties he or she is liable to perform for more than 1 day due to, in his case, military confinement.  It does not mean a Soldier is no longer part of or accountable to the Army.  In most cases these days are added to the end of the Soldier's contractual service time, thus extending it.  The Army simply computed the days he was liable for but did not perform his military duties due to his misconduct and subsequent confinement.

7.  He argues the official statements in his records, dated 18 November 1961, were orchestrated as a combined effort by white officers to have him discharged.  Army Regulation 635-208 essentially states that retention or elimination of an individual is based on whether he is capable of rehabilitation into a useful Soldier and that when he is not capable of rehabilitation, discharge is the appropriate procedure.  These statements were appropriately collected in compliance with the regulation in effect at the time for the purpose of recommending him for separation from military service.  The statements were used to show a pattern of behavior and his unit's unsuccessful attempts at rehabilitation.

8.  He argues his personal hygiene and appearance have never been anything less than commendable; however, his records show his chain of command counseled him several times for his personal hygiene and professional military appearance.

9.  He argues the charges against him for stealing military equipment are ridiculous and claims all the Soldiers he served with had equipment with different serial numbers.  However, his records show he was questioned after an inspection about the sudden appearance of military equipment he misplaced and he admitted to stealing them.

10.  He argues that he did get in a fight with a white Soldier over a game of pool; however, his records show he hit him with his fist which is untrue because he beat him with a pool stick.  It should be noted that he was punished for hitting a Soldier with his fist (assault), rather than hitting him with a pool stick (assault with a weapon).  While the applicant's argument is noted, it is the practice of this Board to not disadvantage an applicant by making the situation any worse for having applied for a correction to his or her record.

11.  There is no evidence of record and the applicant has not provided evidence to show he was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that his rights were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

12.  The applicant's record shows he received NJP under the provisions of Article 15 of the UCMJ and two summary courts-martial.  Based on the applicant's record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to either an honorable or a general discharge.

13.  Although the applicant requested to personally appear before the Board, there was sufficient evidence available for fair and impartial consideration of his case.

14.  Based on the foregoing, there is no ground for granting his 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 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)                                         AR20110016892



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110016892



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1