IN THE CASE OF:	  

		BOARD DATE:  14 June 2012

		DOCKET NUMBER:  AR20110024290 


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 undesirable discharge to honorable.

2.  The applicant states the following:

	a.  He was 19 years old when he was inducted into the Army and had never been south.  He grew up in New York where race or nationality didn't matter and he wasn't prepared for the situations he found himself in when he reported for duty at Fort Benning, GA.  He had excellent ratings while he attended basic combat and advanced individual training (AIT) at Fort Dix, NJ.  There were only a handful of black Soldiers in his unit at Fort Benning, GA, and he believes his entire 9 months at Fort Benning could have been considered a hostile work environment.  

	b.  He suffered racism at every turn and was punished severely for the most minor offenses.  In April 1963, he was given a company grade Article 15 for dereliction of duty which caused him to be relieved from guard duty.  He was subsequently found guilty at a summary court-martial for breaking restriction and does not know why he didn't receive a field grade Article 15 instead.  He was sentenced to confinement at hard labor for 1 month but it was mitigated to restriction and he was surprised when he was promoted to private (PVT)/E-2 in May 1963.  In June 1963, he was found guilty at a special court-martial and in October 1963 he received another Article 15.

	c.  When he was released from confinement, one of the unit's attempts at rehabilitation was to put him in charge of the arms room.  He was working in the arms room when it passed inspection but he was subsequently removed because he was not keeping records properly, was not cleaning unassigned weapons, was found sleeping in the arms room, and was absent on many occasions.  His rehabilitation lasted 2 weeks which is laughable.

	d.  His chain of command knew he had a major problem with sleeping and his time management but they did not care.  Most of the offenses he was charged with had to do with him not being on time, missing formation, or sleeping on duty.  He suffered a skull fracture prior to being inducted into the Army and he fell and struck his head on ice while stationed at Fort Dix in December 1962.  He believes both of these incidents of head trauma and/or traumatic brain injury (TBI) affected his sleep patterns.  No one in the unit listened to him; they all believed he was being obstinate on purpose.  He does not believe he was taken care of by the leadership; he was railroaded in every sense of the word.

3.  The applicant provides:

* Standard Form 89 (Report of Medical History), dated 14 June 1962
* Standard Form 88 (Report of Medical Examination), dated 14 June 1962
* Standard Form 600 (Chronological Record of Medical Care), dated 10 January 1963
* DA Form 19-24 (Statement), dated 5 December 1963, completed by the applicant's first sergeant
* DA Form 19-24, dated 5 December 1963, completed by the applicant's section chief
* Six pages of a Report of Board Proceedings by Board of Officers, undated
* Statement by the applicant's executive officer, dated 10 December 1963 
* Statement by the applicant's immediate commander, dated 14 December 1963

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's records show he was inducted into the Army of the United States on 14 June 1962 when he was almost 19 years of age.  He held military occupational specialty 111.00 (Light Weapons Infantryman).

3.  On 28 February 1963, while in AIT at Fort Dix, NJ, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for fighting in the barracks.  

4.  On 1 March 1963, he was assigned to 7th Battalion, 17th Artillery Regiment, Fort Benning, GA.

5.  On 12 April 1963, he received NJP under the provisions of Article 15, UCMJ, for dereliction of duty by sleeping on duty on numerous occasions and for maintaining an improper personal appearance.

6.  On 16 April 1963, he pled guilty and was convicted by a summary court-martial of breaking restriction on 12 April 1963.  He was sentenced to reduction to PVT/E-1, forfeiture of $55.00 for 1 month, and confinement for 1 month.  The portion of the sentence pertaining to confinement for 1 month was subsequently mitigated to restriction to the battalion area for 1 month.

7.  Special Court-Martial Order Number 11, dated 24 June 1963, issued by Headquarters, 7th Battalion, 17th Artillery Regiment, Fort Benning, GA, shows he pled guilty and was found guilty by a special court-martial on 18 June 1963 of one specification of sleeping on guard duty on 3 June 1963.  He was sentenced to reduction to PVT/E-1, forfeiture of $55.00 per month for 6 months, and confinement for 6 months.  

8.  Special Court-Martial Order Number 15, dated 18 September 1963, issued by Headquarters, 7th Battalion, 17th Artillery Regiment, suspended the unexecuted portion of the sentence of confinement for 6 months until 24 December 1963, at which time, unless vacated sooner, the suspended portion of the sentence would be remitted without further action.

9.  On 10 October 1963, he received NJP under the provisions of Article 15, UCMJ, for failing to report to his appointed place of duty.

10.  Special Court-Martial Order Number 17, dated 14 October 1963, issued by 
Headquarters, 7th Battalion, 17th Artillery Regiment, vacated the unexecuted portion of Special Court-Martial Order Number 11 and ordered the applicant's confinement for 6 months executed.

11.  On 26 November 1963, he underwent a physical and mental health examination.  

	a.  The examining physician noted the applicant's physical condition was normal, he had a history of an ankle sprain in August 1962, an appendectomy in October 1962, chronic sore throats, and no other significant medical history.  He determined the applicant had no physical defects which warranted medical disposition and recommended administrative action as the command deemed appropriate. 

	b.  The examining psychiatrist found the applicant to be mentally responsible, had the mental capacity to understand and participate in board proceedings, and found no disqualifying mental defects sufficient to warrant disposition through medical channels.  He diagnosed the applicant with passive-aggressive personality with manifestations of immaturity, impulsivity, repeated infractions of the rules, and manipulative behavior.  He stated the applicant's impairment was mild and cleared him for administrative action as deemed appropriate by the command. 

12.  On 5 December 1963, his immediate commander notified him that separation action was being initiated against him.  The commander stated from the time the applicant was assigned to the unit, he had shown little initiative and it had become more and more difficult to induce him to put forth any effort toward his duties.  The applicant's attitude toward the Army, noncommissioned officers, and his co-workers was quite concerning and he could not be depended on to perform any task.  He had been given every opportunity to correct his mistakes but he refused to do so.

13.  On 18 December 1963, he was notified by his immediate commander that separation action was being initiated against him under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness) and he was being recommended to appear before a board of officers.

14.  He subsequently consulted with legal counsel who advised him of the basis for the contemplated separation action and of the procedures and rights available to him.  He acknowledged he understood if he were issued an undesirable discharge under other than honorable conditions he could expect to encounter considerable prejudice in civilian life and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result.

15.  On 14 January 1964, a board of officers convened to determine if the applicant should be discharged under the provisions of Army Regulation 635-208 for unfitness.  The board heard testimony from the applicant and his chain of command.  His chain of command testified that the applicant had been counseled numerous times by various members of the chain of command but had consistently refused to comply with instructions.  The applicant testified that the reason he did not do well in the unit was because his fellow Soldiers would not accept him, did not want to be around him, and he had trouble staying awake.  He thought he would do better in another unit.  He also stated he had done a good job in the past and there was nothing in the unit that caused him to sleep on duty.  The applicant did not state that he was a victim of racial discrimination or that he had incurred a head injury which prevented him from performing his assigned duties. (Emphasis added).

16.  The board found that the applicant's military record was characterized by an established pattern of shirking and recommended he be discharged from the service because of unfitness with the issuance of an Undesirable Discharge Certificate.

17.  On 31 January 1964, the separation authority accepted the findings and recommendations of the board of officers and approved his discharge under the provisions of Army Regulation 635-208, for unfitness and directed the issuance of an Undesirable Discharge Certificate.  On 11 February 1964, he was discharged accordingly.

18.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he was discharged under the provisions of Army Regulation 635-208, by reason of unfitness with a under other than honorable conditions characterization of service.  He completed 1 year, 2 months, and 29 days of creditable active service with 151 days of time lost due to confinement.

19.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

20.  The applicant provides, in pertinent part:

	a.  Standard Form 89 and Standard Form 88, both dated 14 June 1962, wherein he indicated he was in good health, had frequent or severe headaches, dizziness or fainting spells, and had not been treated by a physician in the past 5 years.  The examining physician noted the applicant's head, face, neck and scalp were normal and he had a tattoo on the back of his neck.  The notation "skull fx" is listed in the notes section of this form.  The examining physician found he was qualified for military service.

	b.  Standard Form 600, dated 10 January 1963, wherein it shows he was seen for a complaint that he fell on the ice in December 1962 and was experiencing headaches and dizzy spells.  The examining physician found there was no neurological cause and diagnosed him with "nystagmus on lateral gage," which indicated an involuntary rhythmic movement of the eyes.  He was prescribed medication and returned to duty. 

21.  Army Regulation 635-208, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness.  It provided that individuals would be discharged by reason of unfitness when it was clearly established that despite attempts to develop him as a satisfactory Soldier, further effort was unlikely to succeed, rehabilitation was impracticable, and the individual was not amenable to rehabilitation.  This regulation prescribed that an individual discharged for unfitness would be furnished an undesirable discharge, except when an honorable or a general discharge was warranted by the particular circumstances.

22.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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.

23.  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 evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on three separate occasions (including once prior to arriving at Fort Benning) for fighting, dereliction of duty, failing to report for duty, and his court-martial convictions for breaking restriction and sleeping on duty.  Accordingly, his immediate commander initiated separation action against him for unfitness.



2.  His separation action 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 reason for separation were therefore appropriate considering all the facts of the case.

3.  There is no evidence and he did not provide any evidence that shows he incurred racial discrimination while on active duty.  Rather, it appears his chain of command made several attempts to rehabilitate the applicant without success.

4.  There is no evidence and he did not provide any conclusive evidence, 50 years later, that shows he incurred a head injury, was diagnosed with TBI, or was treated for a head injury which affected his ability to stay awake and perform his duties.  

5.  The applicant contends his discharge should be upgraded because he was young at the time of his service.  He was 20 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

6.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20110024290





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ABCMR Record of Proceedings (cont)                                         AR20110024290



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