IN THE CASE OF:	  

		BOARD DATE:	    24 October 2013

		DOCKET NUMBER:  AR20130003246 


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 reconsideration of his previous request for an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, he is providing a new argument that was not previously considered.

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* sixteen statements of support, three undated and 13 dated between 1 and 19 December 2011
* two photographs
* two certificates
* a City of Philadelphia Block Captain Card
* two letters
* an Army Board for Correction of Military Records (ABCMR) Record of Proceedings

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120004105, on 23 August 2012.

2.  As a new argument the applicant states, in effect:

	a.  He had been promoted to the rank/grade of private first class (PFC)/E-3 and was on the verge of being promoted to E-4.  He had a good record and he was a polished Soldier.  He would not have been promoted to PFC if he had not been an effective Soldier.  However, by that time his commander had a paper trail against him.  The commander was prejudiced against him because he was black and the commander tried to destroy his achievements.  

	b.  He was given a court-martial and found guilty of the charges.  He received 6 months in the stockade and an undesirable discharge.  He had no knowledge of what was being done to him and not one person explained anything to him.  He was not informed of any of his legal rights and he was not given the opportunity to prepare himself with military counsel.  His constitutional rights were clearly violated.  It is his belief that he is deserving of an upgrade to an honorable discharge because he gave over 2 years of good service to his country.

3.  The applicant enlisted in the Regular Army on 29 July 1964 and he held military occupational specialty 11E (Armor Crewman).  He was assigned to the 5th Battalion, 32nd Armor Regiment, Germany, on 26 January 1965.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 17 May 1965, for failing to be at his appointed place of duty at the prescribed time and for being drunk and disorderly in downtown Munich, Germany
* 19 July 1965, for failing to be at his appointed place of duty at the prescribed time on18 July 1965 and not returning until 19 July 1965
* 6 August 1965, for failing to be at his appointed place of duty and for breaking restriction
* 6 November 1965, for being absent without leave (AWOL) from his assigned unit from 5 to 6 November 1965
* 15 November 1965, for being AWOL from his assigned unit from 8 to 9 November 1965 and for leaving his guard post without being properly relieved
* 15 April 1966, for failing to obey a lawful order

5.  On 2 May 1966, he was convicted by a special court-martial of two specifications of disobeying a lawful order.  He was sentenced to reduction to private (PVT)/E-1, a forfeiture of $30.00 pay for 6 months, and 6 months in confinement. 
6.  On 17 June 1966, he underwent a psychiatric evaluation.  The examining psychiatrist stated he presented as a rather inadequate, irresponsible, dull, gullible individual who minimized his difficulty and felt confident he could avoid further trouble if afforded the opportunity.  He had difficulty accepting responsibility for his past actions and felt some remorse.  The examining psychiatrist diagnosed him with a passive aggressive personality and psychiatrically cleared him for any administrative action deemed necessary by his command.

7.  On 31 August 1966, he received NJP under the provisions of Article 15, UCMJ, for failing to be at his appointed place of duty at the prescribed time.

8.  On 22 September 1966, the applicant was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.  The commander cited the bases for his recommendation were the applicant's NJP, his failure to respond to counseling and rehabilitative efforts, his failure to demonstrate the aptitude, and interest necessary to become an effective Soldier.

9.  The applicant acknowledged receipt of the discharge action and on 11 October 1966 he consulted with legal counsel who advised him of the basis for the contemplated separation action and of the procedures and rights available to him.  He acknowledged he understood that if he were issued an undesirable discharge he could expect to encounter considerable prejudice in civilian life and he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He requested his case be heard before a board of officers.

10.  He received NJP under the provisions of Article 15, UCMJ, as follows on:

* 18 November 1966, for failing to be at his appointed place of duty at the prescribed time
* 21 November 1966, for violating a lawful regulation by possessing a switch-blade knife longer than three inches

11.  On 25 November 1966, a board convened and interviewed members of the applicant's chain of command and fellow unit members.  The applicant appeared before the board with his legal counsel.  He testified and was able to cross-examine adverse witnesses and to present evidence in his own behalf.  There is no indication that shows during the board proceedings the applicant or his legal counsel argued or alleged he was being discriminated against due to being black (emphasis added).  The board subsequently recommended that he be discharged under the provisions of Army Regulation 635-12, for unfitness - frequent incidents of a discreditable nature with military authorities.

12.  The separation authority subsequently approved his separation action under the provisions of Army Regulation 635-212, paragraph 6a(1) for unfitness and directed the issuance of an Undesirable Discharge Certificate.  On 29 December 1966, he was discharged accordingly.

13.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-212, for unfitness with an Undesirable Discharge Certificate.  He completed 2 years, 5 months, and 1 day of net active service.

14.  In 1977, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge under the Department of Defense (DoD) Special Discharge Review Program (SDRP) and on 30 June 1977, the ADRB denied his request and determined that given his numerous acts of indiscipline his discharge was both proper and equitable. 

15.  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(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.   

16.  The DoD SDRP provided for the review of Vietnam era less-than-honorable discharges in the spirit of compassion.  Compelling reasons for an upgrade under the primary criteria were the award of a decoration or service medal, wounded in action, satisfactory completion of a tour of duty in Southeast Asia, receipt of a prior honorable discharge, or completion of satisfactory service of 24 months prior to discharge.  Reasons for granting an upgrade under the secondary criteria included age, aptitude, education level, alcohol/drug problem, record of good citizenship, etc.

17.  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.

18.  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.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on nine occasions for repeatedly failing to report, being AWOL, and violating a regulation.  He also received a special court-martial conviction for disobeying lawful orders.  Accordingly, his immediate commander initiated separation action against him for unfitness under the provisions of Army Regulation 635-212.

2.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.

3.  Notwithstanding his contention that he was discriminated against because he was black, the evidence of record does not support this contention and the applicant has not provided any evidence to support this contention.  

4.  On 25 November 1966, a board convened and interviewed members of the applicant's chain of command and fellow unit members.  The applicant appeared before the board with his legal counsel.  He testified and was able to cross-examine adverse witnesses and to present evidence in his own behalf.  If the applicant believed he was discriminated against for any reason this was his opportunity to address the issue.

5.  It appears his commander gave him ample opportunity to correct his behavior as it was only after he received seven Article 15s and a court-martial conviction before the commander initiated separation action against him.

6.  Additionally, the available evidence does not indicate the applicant was ever denied due process and the applicant has provided no such evidence.

7.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable or a 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 to amend the decision of the ABCMR set forth in Docket Number AR20120004105, dated 23 August 2012.



      __________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)                                         AR20130003246



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ABCMR Record of Proceedings (cont)                                         AR20130003246



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