BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120010530 


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:

	a.  Correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 4 June 1965:

* item 7a (Race) "Negriod" (unclear if he wants the word "Negroid" spelled correctly or to show a different race) 
* item 10a (Highest Civilian Education Level) from "8 Years" to "12 Years"

	b.  Correction of his DD Form 214 for the period ending 8 March 1966 to show his discharge date as January 1967 and his military occupational specialty (MOS) as "Powerman AB 52-20."

	c.  Removal of Article 15s from his record.

2.  The applicant did not make a statement.

3.  The applicant provides his DD Forms 214 for both periods. 

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.  In connection with his enlistment in the Regular Army (RA), the applicant completed a DA Form 398 (Statement of Personal History) and listed his race as "Negroid."  He also stated that he attended Crawford High School, Arcadia, LA and graduated in May 1964.

3.  He enlisted in the RA for a period of 3 years on 5 June 1964.  His DD Form 4 (Enlistment Record - Armed Forces of the United States) shows in:

* item 4 (Race) - "Negroid"
* item 24a (Grammar School) the entry 8 years and graduated "Yes"
* item 24b (High School) the entry 4 years and graduated "Yes"

4.  He completed basic combat training at Fort Polk, LA, and advanced individual training (AIT) at Fort Belvoir, VA.  He was awarded MOS 52A (Powerman) on 8 October 1964.

5.  He served in Germany from 13 October 1965 to 8 March 1966.  He was initially assigned to the 32nd Signal Battalion in MOS 52B (Power Generation Equipment Operator) from October 1964 to June 1965 and later to the 
4th Aviation Company also in MOS 52B from October 1965 until his discharge date.

6.  While in Germany, he was honorably discharged from active duty on 4 June 1965 for the purpose of immediate reenlistment.  His DD Form 214 for this period of service shows in:

* item 7a his race as "Negriod" (the word is misspelled)
* item 10a "8 years" of education
* item 25a the entry 35.10 Power Generation Specialist

7.  He reenlisted in the RA for 3 years on 5 June 1965.  His DD Form 4 for this period of reenlistment also listed his race as "Negroid." 

8.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of military Justice (UCMJ) as follows:

	a.  On 10 August 1965, for failing to go at the time prescribed to his appointed place of duty (guard mount) on 6 August 1965 and absenting himself from duty without authority on 10 August 1965.  He elected not to appeal his punishment. 

	b.  On 5 October 1965, for being absent without leave (AWOL) from on or about 2 to 4 October 1965.  He elected not to appeal his punishment. 

	c.  On 18 November 1965, for absenting himself from duty without authority on 30 and 31 October 1965 and twice on 1 November 1965.  He elected not to appeal his punishment. 

	d.  On 17 January 1966, for absenting himself from duty without authority on 8 January 1966.  He elected not to appeal his punishment. 

9.  His record contains an extensive history of negative counseling by members of his chain of command for various infractions, including:

* writing bad checks and recurrent indebtedness
* having a carefree attitude and feeling that rules and regulations did not apply to him
* unsatisfactory conduct and efficiency
* a bar to reenlistment

10.  On 25 January 1966, his immediate commander initiated elimination action against him under the provisions of Army Regulation 635-209 (Personnel Separations) for unsuitability.

11.  On 4 February 1966, after he acknowledged that he had been counseled and advised of the basis for the contemplated separation action and he was afforded the opportunity to request counsel but declined, and after having determined the applicant was unsuitable for further military service, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-209 by reason of unsuitability and directed that he be furnished a General Discharge Certificate.  

12.  On 14 February 1966, Headquarters, 18th Aviation Battalion published Special Orders Number 31 ordering his discharge from active duty effective 8 March 1966.

13.  The applicant was accordingly discharged on 8 March 1966.  The DD Form 214 he was issued for this period of service shows in:

* item 11d (Effective Date) - the entry 8 March 1966
* item 25a (Specialty Number and Title) - the entry 52A2O (Electrician Helper)

14.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs that the purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  The version in effect at the time of his discharge stated:

* item 7a shows the race Caucasian, Negroid, Mongolian, or Indian (American or Malayan)
* item 10a shows the highest civilian education level attained and is taken from the DA Form 20 (Enlisted Qualification Record)
* item 11d shows the date the separation was accomplished
* item 25a shows the primary MOS code number and title 

15.  Army Regulation 27-10 (Military Justice) prescribes and implements the policies and procedures pertaining to the administration of military justice.  It implements the procedures prescribed by the Manual for Courts-Martial.  The version of the regulation in effect at the time stated:

	a.  Paragraph 3-11 states that all Army members (except Army personnel attached to or embarked in a vessel) may demand trial by court-martial in lieu of NJP under Article 15 of the UCMJ.  In deciding whether he wishes to elect trial by court-martial, the member is not entitled to be informed as to the type or amount of punishment he will be given if he does not demand trial.  

	b.  Paragraph 3-13 states the power to impose NJP charges a commanding officer or an officer to whom that power has been delegated with the grave responsibility of exercising his authority in a completely judicious manner.  Authority under Article 15 must be administered with absolute fairness in a formal and dignified manner at every stage of the proceedings.  Whenever practicable the commanding officer should impose the punishment in the presence of the member.  The commander may then explain to the member such matters as the factors which he considered in determining the punishment and the appellate rights and procedures which are available to the member, as applicable.

	c.  Paragraph 3-15d (Distribution of Article 15) states the DA Forms 2627, 2627-1, and 2627-2 will be prepared in an original and two copies.  Any written statement or other documentary evidence pertaining to the case which has been considered by the officer authorized to impose the NJP will be attached to the original file.  In cases involving enlisted personnel the original form is forwarded to the U.S. Army Personnel Services Support Center, Fort Benjamin Harrison, IN for filing as a permanent document in the Official Military Personnel File (currently known as the Army Military Human Resource Record); the first copy goes to the unit of assignment, for file above the Field Personnel File Divider in the individual's Military Personnel Records Jacket U.S. Army; and the second copy goes to the individual.  

DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant's race:

	a.  The available evidence shows the applicant identified his race as "Negroid" upon enlistment in the RA and all of his official military records throughout his military service are document as such.  He did not list or use any other race during his military service. 

   b.  Therefore, absent convincing independent and verifiable evidence to the contrary, it is presumed that his military service records, including the DD Form 214, were correct at the time and there is an insufficient evidentiary basis for changing his race.  Nevertheless, the word "Negroid" is misspelled on his DD Form 214 ending 4 June 1965.  Therefore, the race should be spelled correctly.  

	c.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  In this regard, the information contained therein should reflect the conditions/circumstances that existed at the time the records were created and under which the military service was performed.  

2.  With respect to his education, the applicant indicated on the statement of personal history that he attended Crawford High School and graduated in May 1964.  Furthermore, his DD Form 4 for his first period of enlistment listed completion of 8 years of grammar school and 4 years of high school.  It appears his DD Form 214 ending on 4 June 1965 inadvertently listed the highest civilian education level completed as "8 years."  The entry should be corrected to show 12 years. 

3.  With respect to his MOS:

	a.  During the 1950s and early 1960s, the MOS Code for a Power Generation Specialist was 351.10.  This MOS was converted at the beginning of the Vietnam conflict to MOS 52A.

	b.  The applicant completed AIT at Fort Belvoir, VA and he was awarded MOS 52A on 8 October 1964.  Although the MOS number was the correct number prior to the applicant's enlistment, by the time he completed training, the MOS had been converted to MOS 52A.  Therefore, as a matter of clarity, the applicant should have his DD Form 214 for the period ending on 4 June 1965 corrected to show MOS 52A.

4.  With respect to the separation date, the applicant was discharged under the provisions of Army Regulation 635-209.  His discharge orders ordered his discharge effective 8 March 1966.  His DD Form 214 correctly listed the effective date of discharge as 8 March 1966.  He did not serve on active duty beyond this date. 

5.  With respect to the Article 15s:

	a.  The applicant accepted NJP on four separate occasions for various infractions.  In each case, he was afforded the opportunity to consult with counsel, demand trial by a court-martial, and/or submit matters in extenuation, mitigation, and defense.  In every case, he accepted the NJP and elected not to appeal his punishment.  

	b.  The applicant had the opportunity to turn down these Article 15s and demand trial by court-martial at the time they were issued.  He declined to do so. A commander's decision cannot or should not be reversed without overwhelming evidence it was unlawful or egregiously unfair.  The applicant has presented no such evidence.  Therefore, he is not entitled to have the Article 15s expunged from his record.  The four Article 15s are appropriately filed in his service record and he has provided no reason to remove them. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x__  ___x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* deleting from item 7a of his DD Form 214 ending on 4 June 1965 the word "Negriod" and adding the word "Negroid"
* deleting from item 10a of his DD Form 214 ending on 4 June 1965 the entry "8 Years" and adding the entry "12 Years"
* deleting from item 25a of his DD Form 214 ending on 4 June 1965 the entry "Power Generation Specialist 351.10" and adding the entry "52A Powerman"

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:

* Changing his race
* Changing the effective date of his discharge
* Removing the Article 15s from his records



      _______ _  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)                                         AR20120010530



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ABCMR Record of Proceedings (cont)                                         AR20120010530



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