BOARD DATE:	  6 September 2012

		DOCKET NUMBER:  AR20120004940 


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 under other than honorable conditions discharge to an honorable discharge
* Change the narrative reason for separation to convenience of the Government
* Change his separation and reentry (RE) codes

2.  The applicant states:

* He experienced medical and physical problems which impaired his ability to serve
* He was being considered for a physical disability discharge at the time as he was medically unqualified to service but he was denied
* He did not feel he could continue to serve and his life was threatened so he went absent without leave (AWOL)
* After he returned, he volunteered to go to Vietnam but he was turned down because of his medical issues so he chose to go AWOL
* After his imprisonment and subsequent leave, he was assigned to a holding company where he was offered a general discharge
* He was very upset about the death of his grandmother in November 1969 and the rape and death of his girlfriend in December 1969
* His discharge was improper because his commander did not follow the regulation; he was not told his rights or receive a court-martial
* He faced racial discrimination throughout his military service; he even had three close friends killed in the wake of such racial discrimination 

3.  The applicant provides:

* Various newspaper articles regarding racial discrimination
* Extract from Reference Library of Black America
* Advanced Individual Training Diploma

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 enlisted in the Regular Army on 30 December 1967 and he held military occupational specialty 51B (Carpenter).  He served in Germany from on or about 18 May 1968 to on or about 9 December 1969.  

3.  His records also show he was awarded or authorized the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  His records further show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on/for:

* 6 September 1968, being absent from his appointed place of duty on 5 September 1968
* 4 December 1968, damaging military property through neglect

5.  On 5 January 1969, he departed his unit in an AWOL status and on or about 5 February 1969, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities in Maywood, IL, and returned to military control at Fort Riley, KS, on 3 March 1969.
6.  While the applicant was AWOL, his commander conducted an inquiry into his AWOL status.  The commander stated:

* The applicant had performed his duties in a lackadaisical manner and had to be constantly corrected by his supervisors for uniform violations and courtesy
* The applicant was a belligerent individual who hated to take orders and was far below the standards of an average Soldier
* The applicant's three closest friends were questioned about his whereabouts but none knew the reason for the applicant's AWOL

7.  On 11 March 1969, he again departed in an AWOL status and on 19 March 1969, he was again dropped from the Army rolls as a deserter.  He was apprehended by Federal authorities and returned to military control on 7 August 1969.  

8.  While the applicant was AWOL, his commander conducted another inquiry into the applicant's whereabouts but found no foul play, domestic strife, indebtedness, or other reasons to explain the AWOL. 

9.  On 4 October 1969, consistent with his pleas, he was convicted by a special court-martial of two specifications of AWOL from 5 January to 3 March 1969 and 11 March to 7 August 1969.  The Court sentenced him to a forfeiture of pay and confinement for 5 months.  The convening authority approved his sentence on 13 October 1969.

10.  He underwent a separation physical on 11 September 1969 at Fort Leonard Wood, MO.  The examining military doctor found him fully qualified for separation. 

11.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 9 January 1970 under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness with a character of service of under other than honorable conditions and issuance of an Undesirable Discharge Certificate.  He completed 1 year, 1 month, and 9 days of active service and he had 337 days of lost time.  This form also shows in:

* Item 11e (Type of Transfer or Discharge - Reason and Authority) - "AR 635-212, SPN (Separation Program Number) 28B (unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities)
* Item 15 (Reenlistment Code) - RE-3 and RE-3B
* Item 30 (Remarks) - Table 2-5, AR 601-210 ((Active and Reserve Components Enlistment Program) Applies

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  On 29 March 2009, he petitioned the ABCMR for correction of his discharge from under other than honorable conditions to a medical discharge.  His contentions in that application were similar to the ones he makes here.  

14.  On 9 September 2009, the ABCMR addressed his medical issues but found no evidence of a disability at the time of his discharge and as such, it denied his request.  

15.  He submits a diploma, dated 6 May 1968 that shows he completed the Chemical Operations Apprentice Course.  He also provides various newspaper articles and an extract from a book addressing issues of racial discrimination.

16..  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

17.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel:

	a.  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.

	b.  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.

18.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. Table 3-1 included a list of the Regular Army RE codes:

* RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met
* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible for enlistment unless a waiver is granted
* RE-3B applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation because eof lost time
* RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification; they are ineligible for enlistment

19.  Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's discharge, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  At the time of the applicant's separation, it stated, in pertinent part, that the SPN code of 28B was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-212, by reason of unfitness (frequent involvement in incidents of a discreditable nature with civil or military authorities). 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 9 January 1970 under the provisions of Army Regulation   635-212 by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities. 

2.  With respect to the character of service:

	a.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.

	b.  It appears his discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, his service appears to not merit an upgrade of his discharge.  In view of the foregoing, there is no basis for upgrading his character of service.

3.  With respect to the separation and RE codes:

	a.  The evidence of record confirms his separation and RE codes were assigned based on the fact that he was discharged under the provisions of Army Regulation 635-212 due to unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities as evidenced by his NJP, court-martial, and extensive AWOL.  

	b.  Absent his frequent involvement in incidents of a discreditable nature with civil or military authorities, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his unfitness, the frequent involvement in incidents of a discreditable nature with civil or military authorities.  The only valid narrative reason for separation here is unfitness.

	c.  The appropriate Separation Code (then known as SPN Code) associated with this type of discharge is "28B" which is correctly shown on his DD Form 214. Additionally, since he had lost time, he was also assigned RE-3 and RE-3B. Therefore, he is not entitled to the requested relief.

4.  With respect to his arguments:

	a.  Prior to separation the applicant underwent a medical examination and a mental status evaluation and he was found medically qualified for separation.  There is no evidence in his records and he did not provide any substantiating evidence that shows he was medically disqualified for retention.  

	b.  The prevalent racial issues at the time are noted.  However, there is no evidence his extensive history of AWOL was caused by any racial issues.  Additionally, there is no evidence of any tragic events (death, rape) that caused his AWOL. 

	c.  By his own admission, he chose to go AWOL.  This is further confirmed by the commander's inquiry at the time that found no explanation of the applicant's AWOL. 

5.  The applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  As such, he is not entitled to the 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 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)                                         AR20120004940





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ABCMR Record of Proceedings (cont)                                         AR20120004940



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