IN THE CASE OF:	   

		BOARD DATE:	  24 October 2013

		DOCKET NUMBER:  AR20130004187 


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 was young and immature at the time; he did something that he now regrets.  He had served in the U.S. Air Force (USAF) prior to joining the Army.  He got out of the USAF because he applied for officer candidate school, but he was not accepted because he was black.  He remained bitter when he joined the Army which resulted in his bad conduct.  He really wanted to serve his country but felt discriminated against him because of his color.  He was discharged from the Army without having the opportunity to defend himself.  His spouse visited him at Aberdeen Proving Ground on one occasion and he was not allowed to stay in the guest house during her visit while other white Soldiers were.

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's complete 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.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  His USAF WD AGO Form 53 (Enlisted Record and Report of Separation – Honorable Discharge) shows he was born on 23 September 1932 and he served in the USAF from 30 November 1949 through 10 February 1950.

4.  His U.S. Army DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he enlisted in the Regular Army on 10 April 1951 at 18 1/2 years of age.  He was discharged on 22 October 1954 under the provisions of Army Regulation 615-368 (Enlisted Men – Discharge – Unfitness) with his service characterized as undesirable.  He completed 2 years, 11 months, and 29 days of creditable active military service of which 1 year, 2 months, and 7 days were foreign service.  He was awarded the Korean Service Medal with three bronze service stars and United Nations Service Medal.  He served in the Ordnance Corps and his most significant duty assignment (i.e., last duty assignment) is shown as the 9337th Tactical Small Unit (Ordnance) at Aberdeen Proving Ground, MD.

5.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his DD Form 214 for this period also shows he had 197 days of lost time due to pretrial confinement (Manual for Courts-Martial, 1951, appendix 2b, section 6a) and he exhibited habits and traits of character which rendered his retention in the service undesirable.

6.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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.  This regulation provided for the discharge of individuals who had demonstrated their unfitness by evidence of habits and traits of character manifested by misconduct.  Unfitness included habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct.  An undesirable discharge was normally considered appropriate.

8.  Army Regulation 615-368 also stated that a board of officers would recommend that the individual either be discharged because of unfitness or unsuitability, or retained in the service.  The regulation stated that discharge, if recommended, would be for unfitness, except that discharge because of unsuitability (under Army Regulation 615-369 (Enlisted Personnel – Discharge – Inaptitude or Unsuitability)) without referral to another board might be recommended in borderline cases if military circumstances and the character of service rendered by the individual during his current period of service so warranted.  As examples, such circumstances would apply where the cause of unfitness had been minor relative to the length of efficient service or where there had been a definite effort at self control or where an individual had distinguished himself by an act of heroism during his current period of service which in itself reflected great credit on the individual and the military service.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the separation of enlisted personnel.

	a.  Paragraph 3-7a provides that 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 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 contention that his discharge should be upgraded and the evidence he provided as well as his available service record, including his age and his contention of discrimination, were carefully considered.  However, there is insufficient evidence to grant him the requested relief.

2.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his DD Form 214 shows he was issued an undesirable discharge on 12 October 1954 under the provisions of Army Regulation 615-368.  This form also shows he had 197 days of lost time.

3.  In the absence of evidence to the contrary, it appears the applicant had a history of misconduct that led his chain of command to recommend his separation.  It is presumed that his administrative separation was accomplished in compliance with applicable regulations at the time with no procedural errors which would tend to jeopardize his rights.  It is also presumed that the separation authority appropriately directed the issuance of an undesirable discharge based on his overall record during the period under review.

4.  Based on his available record, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is insufficient evidence to grant him the requested relief.

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)                                         AR20130004187



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ABCMR Record of Proceedings (cont)                                         AR20130004187



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