IN THE CASE OF:	  

		BOARD DATE:  16 July 2013

		DOCKET NUMBER:  AR20120022844 


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 his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he was a young man then and very impressionable.  He was assigned to work in a mostly all white pool hall on base and as an African-American he was being threatened with his life and he was very scared.  He felt like his life was in danger all the time so he refused to go back to work there.  He was then told by his lieutenant that he would be discharged with an other than honorable conditions discharge.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 6 July 1971.

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 military 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 the applicant’s records were lost or destroyed in that fire.  The only record available to this Board is the applicant’s DD Form 214 that he provided.

3.  He enlisted in the Regular Army on 20 April 1970 for 2 years.  

4.  He served in the Republic of Vietnam from 17 September 1970 to 5 July 1971.

5.  The applicant's separation processing package was not available for the Board's review.

6.  On 6 July 1971, he was discharged under the provisions of Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability).  

	a.  He completed 1 year, 2 months, and 17 days of active service that was characterized as under other than honorable conditions.

	b.  Block 11c (Reason and Authority) of his DD Form 214 shows the Separation Program Number (SPN) 384.  Army Regulation 635-5 (Separation Documents) specifies the narrative reason for SPN 384 as "Unfitness - drug abuse, as defined in paragraph 6a(3), AR 635-212" and that the authority for discharge under this SPN was Army Regulation 635-212.

7.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that 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.

9.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(3) of the regulation provided that members involved in drug addiction, habituation, or the unauthorized use or possession of narcotics, marijuana, hypnotics, sedatives, tranquilizers stimulants, hallucinogens, and other similar known harmful or habit forming drugs were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate. However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a states 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.

11.  Army Regulation 635-200, 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.  

DISCUSSION AND CONCLUSIONS:

1.  He contends as an African-American he was assigned to work in a mostly white pool hall and was being threatened with his life.  However, he has not provided any substantive evidence to support his contention.

2.  His military records and his separation processing package were not available for review.  Therefore, the exact circumstances surrounding his discharge are not known.

3.  Although the applicant's separation package was not available it is presumed that the Army's administrative processing of the applicant for discharge is correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

4.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

5.  In view of the above, there is insufficient evidence to upgrade his discharge to an honorable or 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)                                         AR20120022844



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ABCMR Record of Proceedings (cont)                                         AR20120022844



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