IN THE CASE OF:	  

		BOARD DATE:	    7 November 2013

		DOCKET NUMBER:  AR20130003856 


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 upgrade of his undesirable discharge.

2.  The applicant states:

* he was a victim of prejudice and racial abuse from some of the white guys in his units
* he was young and dumb at the time and could not handle the race game that was played
* he is 60 years old and sickly and needs the Government's help (apparently he means Department of Veterans Affairs (VA) medical benefits)
* everything went wrong when he was sent to Vietnam
* it is sad to say, but his fellow white comrades made him feel like he had two enemies to deal with

3.  The applicant provides no additional documentary 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 17 March 1951.  He enlisted in the Regular Army on 9 May 1969 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 94B (cook).  He arrived in Vietnam on 
15 November 1969.

3.  On 9 July 1970, he was convicted by a special court-martial of assaulting a specialist four/E-4.  He was sentenced to a forfeiture of pay for 3 months.  On
10 July 1970, the convening authority approved the sentence.

4.  On 28 July 1970, he was convicted by a special court-martial of possessing marijuana, behaving with disrespect toward a superior commissioned officer, disobeying a lawful order, and wrongfully appropriating government property.  He was sentenced to confinement at hard labor for 4 months, forfeiture pay for
4 months, and reduction of private/E-1.  On 28 July 1970, the convening authority approved the sentence.

5.  On 19 August 1970, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  The unit commander cited the applicant's special court-martial offenses.

6.  On 22 August 1970, after consulting with counsel and being advised of the basis for the contemplated separation action its effect and the rights available to him the applicant requested consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

7.  On 15 September 1970, after consulting with counsel, he waived consideration of his case by a board of officers and representation by counsel.  He acknowledged he understood that he might expect to encounter substantial prejudice in civilian life in the event an undesirable discharge under conditions other than honorable was issued to him and that he may be ineligible for many or 


all benefits as a veteran under both Federal and State laws.  He further elected not to submit a statement in his own behalf.

8.  On 26 September 1970, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-212 and directed the issuance of an Undesirable Discharge Certificate.

9.  On 3 October 1970, he was discharged under the provisions of Army Regulation 635-212 for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  He completed 1 year,
2 months, and 21 days of total active service with 64 days of time lost due to military confinement.

10.  On 19 June 1973, the Army Discharge Review Board (ADRB) denied the applicant's request for a general discharge.

11.  On 16 August 1977, under the Department of Defense Discharge Review Program (Special), the ADRB denied his request to change his discharge.

12.  On 21 January 1983, the ADRB again denied his request to upgrade his discharge.

13.  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 that members involved in frequent incidents of a discreditable nature with civil or military authorities was subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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 claims he was a victim of prejudice and racial abuse.  However, there is no evidence of record and he provides no evidence that shows he was a victim of racial discrimination.

2.  He claims he was young and dumb at the time.  However, age is not a sufficiently mitigating factor.  He was over 18 years of age when he enlisted and successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military term of service.

3.  He wants his discharge upgraded so he can obtain VA medical benefits.  However, a discharge is not changed for the purpose of obtaining VA benefits.

4.  His record of service included two special court-martial convictions and 
64 days of time lost.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

6.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20130003856



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ABCMR Record of Proceedings (cont)                                         AR20130003856



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