IN THE CASE OF: 

		BOARD DATE: 18 June 2013

		DOCKET NUMBER:  AR20120020855


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 the character of his discharge be upgraded to at least "General Under Honorable Conditions."

2.  The applicant states:

	a.  The discharge shows 170 days lost under Article 107.  He was neither absent without leave (AWOL) nor confined for 170 days.  He was confined for approximately 4 days then reassigned to a military police unit until he was discharged.

	b.  He was never brought before any type of formal board.  He first learned of the charges against him at the time of his discharge processing.

	c.  He was caught up in and became a victim of racially-motivated violence on the part of junior officers at Fort Knox, Kentucky.  

	d.  The discharge is clearly the result of a racially-motivated incident and should be corrected.

3.  The applicant provides:

* National Archives and Records Administration (NA) Form 13038 (Certification of Military Service)
* WD AGO Form 53-56 (Discharge from the Army of the United States)
* 
WD AGO Form 100 (Separation Qualification Record)
* Statement from Mrs. Connie F____-B____, the applicant's daughter
* Applicant's statement dictated to his daughter
* letter from Mr. Wolford N. F____
* Statement from Mr. Thomas K____, Mayor, Village of Savannah, Ohio
* 2 pages of the Articles of War (Articles 99 through 116)

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 are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that his records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  The applicant’s available records show he enlisted in the Regular Army on
20 April 1946 and entered active duty the same day.  At the time of his separation, he held military occupational specialty 590 (Duty Soldier). 

4.  The applicant's discharge packet is not available.  However, his WD AGO Form 53-56 shows he was discharged on 13 February 1947 under the provisions of Army Regulation 615-368.  He had completed 9 months and 24 days of service and he had 170 days of time lost.  His NA Form 13038 shows he received an Other Than Honorable Discharge. 

5.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

6.   The applicant provides a:

	a.  statement from his daughter in which she relates that her father told her he had kept his other than honorable conditions discharge a secret for over 
60 years.  He told her of the events that led to his discharge.  She looked up the history of "Blue Ticket" or "other than honorable" discharges on the internet and learned that such discharges that were motivated by racism were, in fact, corrected.  He was the victim of racially-charged violence.  She is requesting her father's discharge be upgraded because he was not AWOL; therefore, Article 107 of the Articles of War should not be applied.

	b.  statement he dictated to his daughter in which he describes the circumstances that led to his discharge.  He states that "After coming home from the Philippine Islands...", he along with other Soldiers were involved in an incident started by a (white) second lieutenant (2LT) for which he was taken into custody by the military police.  He was locked up overnight and the next day went before a hearing with three senior officers.  He was sent to the post stockade for several days.  He was informed that charges were being preferred against him but it would take some time.  So he was given a uniform and assigned to the 2128th Military Police Department.  He remained in that unit until he received his discharge and provided bus and train transportation to his home.

	c.  letter from Mr. Wolford N. F____ who asks that the applicant's discharge be upgraded to receive veterans' benefits.

	d.  statement from Mr. Thomas K____, Mayor of Village of Savannah, OH, who states that the applicant served honorably and with great dedication on the Savannah Village Council from 1990 to 1997.  Since leaving the Village Council the applicant has been available to help the Council and community in several capacities.

7.  Army Regulation 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness.  That regulation provided for the discharge of individuals who had demonstrated their unfitness by 
giving evidence of habits and traits of character manifested by misconduct.  An undesirable discharge was normally considered appropriate.

8.  Article 107, Articles of War (Soldiers to Make Good Time Lost) states that every Soldier who in an existing or subsequent enlistment deserts the service of the United States or without proper authority absents himself from his organization, station, or duty for more than one day, or who is confined for more 

than one day under sentence, or while awaiting trial and disposition of this case, if the trial results in conviction, or through the intemperate use of drugs or alcohol liquor, or through disease or injury the result of his own misconduct, renders himself unable for more than one day to perform duty, shall be liable to serve, after his return to a full-duty status, for such period as shall, with the time he may have service prior to such desertion, unauthorized absence, confinement or inability to perform duty, amount to the full term of that part of his enlistment period which he is required to serve with his organization before being furloughed to the Army Reserve.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) governs the separation of enlisted personnel.

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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 states 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.

10.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Unfortunately, there is no substantiating evidence to support the applicant's claim that his discharge was the result of a racially-motivated incident started by a white officer.

2.  The applicant's daughter contends that his discharge should be upgraded because he was not AWOL; therefore, Article 107 of the Articles of War should not be applied.  However, his WD AGO Form 53-56 shows he had 107 days of time lost under Article 107 of the Articles of War.

3.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

4.  There is no evidence of record and the applicant did not provide any evidence that shows an error, injustice, or inequity occurred during his separation processing.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant a general or an honorable 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)                                         AR20120017703



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ABCMR Record of Proceedings (cont)                                         AR20120020855



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