IN THE CASE OF:	  

		BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110020829 


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, an upgrade of his general discharge (GD) to an honorable discharge.

2.  The applicant states he gave his life to the Armed Forces but only suffered racial hatred and intolerance.  He suffered severely from a race riot at Fort Riley, Kansas, on 4 July 1970.

3.  The applicant provides no additional evidence.

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 January 1970, completed training, and was awarded military occupational specialty 51B (Carpenter).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served at Fort Riley after training from 2 June 1970 through 13 September 1970.

4.  On 24 November 1970, a special court-martial found the applicant guilty of being absent without leave (AWOL).  His sentence included 30 days of confinement.

5.  He received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on 1 January 1971 for being AWOL.

6.  The applicant is shown to have 49 days of lost time from 26 March through 13 May 1971.  This lost time is recorded in different locations as either AWOL or military confinement; the specifics are not of record.

7.  On 24 June 1971, the applicant's command initiated separation proceedings for unfitness.

8.  The applicant acknowledged the separation recommendation on 24 June 1971.  He requested counsel and to appear before a board of officers.

9.  On 27 August 1971, a board of officers determined the applicant was unfit for retention in the military service because of habits and traits of character manifested by repeated commissions of petty offenses and habitual shirking.  The board recommended the applicant's discharge for unfitness with a GD.

10.  On 1 October 1971, the separation authority approved the findings and directed the applicant's discharge under the provisions of Army Regulation 
635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness and issuance of a GD Certificate.

11.  The applicant was discharged under honorable conditions on 5 October 1971.  He completed 1 year, 4 months, and 27 days of creditable service with 121 days of lost time.

12.  A review of the website "Today in History" shows that 100 people were injured in a race riot on 4 July 1970; however, this was in Asbury Park, NJ.

13.  While a review of the website "Riot and Rebellions" does show there were a number of on-base riots or stockade rebellions in 1970, it does not show any riots or rebellions at Fort Riley in 1970.

14.  Army Regulation 635-212, in effect at the time, set forth the authority for the elimination of enlisted personnel for unfitness.  Paragraph 6 provided that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities and/or an established pattern of shirking.  When separation for unfitness was warranted, an undesirable discharge (UD) was normally considered appropriate.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states 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.

DISCUSSION AND CONCLUSIONS:

1.  The record does not contain and the applicant has not provided any evidence that he "suffered severely" from a race riot at Fort Riley on 4 July 1970.  

2.  The record does not contain and the applicant has not provided any evidence that his discharge was the result of racial discrimination or that race was a factor in either the decision to discharge him or the characterization of his service.

3.  The applicant had less than a year and a half of service during which time he had 4 months of lost time due to AWOL or military confinement.  His record contains no commendations or complementary entries.

4.  At the time of his discharge, a UD was considered appropriate for a Soldier discharged for unfitness under Army Regulation 635-212.  The fact that the applicant received a GD instead of a UD shows he was afforded leniency in his characterization of service.

5.  There is insufficient evidence that would warrant granting the relief requested.

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)                                         AR20110020829



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ABCMR Record of Proceedings (cont)                                         AR20110020829



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