IN THE CASE OF:	  

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130009783 


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 to a general discharge.

2.  The applicant states:

   a.  He was convicted by a court-martial for being disrespectful to his officers and noncommissioned officers (NCO) and for assault of an NCO.  He was reduced in pay grade and sent to rehabilitation.  He also received several Article 15s for similar offenses.  He was discharged after being reassigned to Fort Jackson, SC.  He had been involved in incidents which were very racial, such as having a cross burning on the barracks lawn where he lived in Korea, and he was not at all comfortable.  This happened in 1971 and was the beginning of his problems.

   b.  It is difficult to be in a location where there are many racial issues.  He was not old or mature enough to handle the situations he faced.  He reacted physically and a fight broke out when he requested to see the Judge Advocate General to address the problems he was feeling and experiencing.  His first sergeant pushed him and when he recovered, he reacted and struck out.  The changes that came about after those incidents in the early 1970s, which they were experiencing as service members, are significant and he believes support his request for an upgrade of his general discharge.

   c.  He believes he has matured and become a good citizen.  He has experienced great progress in racial relations both for himself and his community. He believes that his discharge was the result of prejudicial actions which he wishes to learn from and he has sincere hope that others will have learned as well.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report or Transfer or Discharge), three characters reference letters, and a memorandum for Metro Technology Center graduates.

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 enlisted in the Regular Army on 11 May 1971.  At the time of his enlistment, he was 19 years and 6 months of age.  He completed training and was awarded military occupational specialty (MOS) 51B (carpenter).  He was advanced to pay grade E-3 on 1 November 1971.  He served in Korea from 28 April 1972 through 7 December 1972.  

3.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on/for:

* 5 November 1971, violating a lawful regulation on 1 November 1971
* 29 June 1972, failing to go to his place of duty on 21 June 1972
* 31 July 1972, avoiding work and feigning illness on 18 July 1972 and being absent without leave on 19 July 1972
* 10 August 1972, failing to go to his place of duty on 29, 30, and 31 July 1972

4.  He was reduced to pay grade E-1 on 10 August 1972.

5.  On 2 February 1973, he was convicted by a special court-martial of one specification each of disobeying lawful orders on 5 and 8 December 1972, assault on 8 and 27 December 1972, and being disrespectful on 8 December 1972.  His sentence included confinement at hard labor for 4 months and a forfeiture of pay for 3 months.

6.  On 26 February 1973, the convening authority approved the sentence and ordered it executed.  

7.  Special Court-Martial Order Number 772, dated 6 April 1973, suspended the approved sentence of forfeiture of pay for 3 months until 1 June 1973.

8.  Special Court-Martial Order Number 901, dated 19 April 1973, suspended the approved sentenced to confinement at hard labor for 4 months until 1 June 1973.

9.  He again accepted NJP under Article 15, UCMJ, on/for:

* 30 May 1973, failing to obey a lawful order on 16 May 1973
* 12 June 1973, failing to obey lawful orders to perform extra duty on 1, 2, and 3 June 1973 

10.  On 19 June 1973, the applicant's company commander initiated action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separation), chapter 13, for unfitness.  

11.  On 20 June 1973, after consulting with counsel, the applicant acknowledged receipt of the proposed separation.  He also acknowledged he could receive a general or an undesirable discharged and the results of issuance of an undesirable discharge.  He elected to appear before a board of officers.  Additionally, he elected to not submit a statement in his own behalf.   

12.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 22 June 1973, shows the applicant's behavior was found to be normal.  He was fully alert and fully oriented and his mood was level.  His thinking was found to be clear and his thought content was normal.  He was determined to be mentally responsible and able to distinguish right from wrong and able to adhere to the right.  

13.  On 23 July 1973, a board of officers convened and based on their review of the evidence found the applicant was unqualified for retention in the military.  The board recommended the applicant be eliminated from the service under the provisions of Army Regulation 635-200, paragraph 13-5a(1), and issued an Undesirable Discharge Certificate.

14.  On 6 August 1973, the separation authority approved the applicant’s discharge for unfitness with an undesirable discharge.
15.  Accordingly, he was discharged in pay grade E-1 on 7 August 1973, under the provisions of Army Regulation 635-200, chapter 13, with an undesirable discharge.  He was credited with completion of 1 year, 10 months, and 13 days of net active service and 133 days of time lost.

16.  He provided three character reference letters wherein the individuals attested to his completion of a Career Development Workshop, being nominated for People Pleaser for the month in 2007, and that he was a man of good character who stood by his word.

17.  On 9 April 1974, the Army Discharge Review Board denied his request for an upgrade of his discharge.

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

	a.  Chapter 13 – Action would be taken to separate an individual for unfitness when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort was unlikely to succeed.  An individual separated by reason of unfitness would be furnished an undesirable discharge certificate unless warranted by the particular circumstances in his case.

   b.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was punished under Article 15 between November 1971 and July 1973 and convicted by a special court-martial of various offenses to include assault.  His company commander initiated action to separate him for unfitness.  He was determined unqualified for retention by a board of officers and was recommended for elimination.  He was discharged accordingly on 7 August 1973.

2.  There is no evidence of record and he did not provide sufficient evidence or a convincing argument to show he was unjustly prevented from satisfactorily completing his term of service due to racial issues.  His military records contain no evidence which would entitle him to an upgrade of his undesirable discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general discharge.
3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his undesirable 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)                                         AR20130009783





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ABCMR Record of Proceedings (cont)                                         AR20130009783



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