IN THE CASE OF:	  

		BOARD DATE:	    16 May 2013 

		DOCKET NUMBER:  AR20120019953 


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.

2.  The applicant states he wants his discharge upgraded for funeral arrangements and to have his family presented a flag at the time of his death.  He states he served his country to the best of his ability at age 17.  He was always pressured and treated unfairly because of his race and military occupational specialty (MOS) which was that of a clerk typist – which was rare for a black man in the late 1950's.  He also states he had a discharge review in Brooklyn, New York, and he submitted several character witnesses which should be in his official records.  He states he had surgery for a hernia in basic training and was labeled a "gold brick," was given nonjudicial punishment for drinking and gambling, and was absent without leave (AWOL) for 1 day due to being deserted by a fellow Soldier.  He further states that upon arrival in Germany his commander gave him nonjudicial punishment for gambling and he was not given a pass because he was told he had to pass a test.

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 was born on 10 April 1941 and he enlisted in the Regular Army at 18 years of age on 17 April 1959 for a period of 3 years.  He completed basic training at Fort Carson, Colorado, and advanced individual training as a clerk typist at Fort Leonard Wood, Missouri.  He was transferred to Rocky Mountain Arsenal, Colorado, for his first assignment.

3.  On 23 April 1960, he was transferred to Germany for assignment to an ordnance detachment in Zweibruecken.

4.  On 14 December 1960, the applicant's commander initiated action to discharge him from the service for unfitness under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness).  He cited the applicant's conviction by a summary court-martial for being disorderly in quarters and disobeying a lawful order from a superior noncommissioned officer; his conviction by a special court-martial for behaving with disrespect toward a superior commissioned officer and willfully disobeying the same, for being disrespectful in language toward a chief warrant officer by calling him a profane name; and for two unit punishments for being absent from his unit without authority and failure to obey a lawful order, unsatisfactory conduct and efficiency, disregard for regulations, and contempt towards authority as the basis for his recommendation.

5.  On 17 January 1961, a board of officers convened to determine if the applicant should be separated from the service prior to the expiration of his term of service.  After hearing testimony from all parties concerned, to include the applicant who appeared with counsel, the board of officers determined the applicant should be discharged for unfitness due to his frequent involvements in incidents of a discreditable nature with civil and/or military authorities and recommended the issuance of an Undesirable Discharge Certificate.

6.  The appropriate authority approved the findings and recommendations of the board of officers on 19 January 1961.


7.  Accordingly, he was discharged under other than honorable conditions on 
27 February 1961 under the provisions of Army Regulation 635-208 for unfitness due to his frequent involvement in incidents of a discreditable nature with civil and military authorities.  He completed 1 year, 6 months, and 3 days of active service and had 130 days of lost time due to AWOL and confinement.  He was issued an Undesirable Discharge Certificate.

8.  On 14 April 1980, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that his discharge was inequitable when compared to current standards; when considering the personal and situational problems that impaired his ability to serve; and considering his  excellent post-service conduct which consisted of establishment of his own business, completion of 30 college credits, and raising a family.  He also submitted four character references with his application.

9.  The applicant was granted a personal appearance before the ADRB Traveling Panel in Brooklyn, New York, on 28 October 1981 and was represented by counsel.  After hearing all testimony and reviewing the available evidence, the ADRB voted unanimously to deny his request for an upgrade of his discharge on 3 November 1981.

10.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness due to frequent involvement in incidents of a discreditable nature with civil and/or military authorities.  An undesirable discharge was normally considered appropriate.

11.  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.

12.  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 applicant's administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

3.  The applicant's contentions have been noted; however, not only are they not supported by the evidence of record, they are not sufficiently mitigating when compared to the repeated nature of his offenses.  He was convicted by at least two courts-martial and nonjudicial punishment was imposed against him on at least two occasions in less than a 4-month period.  The applicant's overall service simply did not rise to the level of a discharge under honorable conditions.

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)                                         AR20120019953



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ABCMR Record of Proceedings (cont)                                         AR20120019953



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