IN THE CASE OF:	   

		BOARD DATE:	  24 July 2014

		DOCKET NUMBER:  AR20130021510 


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, in effect, correction of his military records by changing the reason and authority for and upgrading of his undesirable discharge.

2.  The applicant states he served in the Army from April 1969 through May 1971.  The year of 1971 was a time when African-Americans were still being mistreated and disallowed equality as a citizen of the United States, unlike most Caucasian Americans.  Caucasian military chief authorities, such as his commanding officer, were often times more mature in age and had been bred during an era when segregation and degradation was common among the races. Inferiority had a face that was painted solely upon the African-American (particularly males) and military authorities appeared not to believe that all Soldiers were equal and African-Americans really had no business serving in the U.S. military in the first place.  He was often treated with a lack of dignity and respect he deserved as a human being, as a citizen of this country, as a voluntary patron of the U.S. military, and as a man.  

   a.  He states that the administrative jargon in his military records suggests there was a series of incidents when he disobeyed supervisors and spoke disrespectfully to supervisors.  As an African-American, he was discriminated against, disrespected, and not treated equally with the white Soldiers.  He was not privileged to have the listening ear of his commanding officer.  Every time he tried to defend himself, he was thought to be aggressive.  For example, if he spoke too loudly or with a deep tone, he was being insubordinate.  His voice has always been naturally deep-toned.  He equates his voice with that of Louis Armstrong.  He was born with this voice and can do nothing to change it.  Another example he gives, is when he would salute the commanding officer and say “Sir, Specialist {last name], reporting sir!,” and if the commanding officer thought the position of his hand salute was not elevated high enough above his nose the commander would never return his salute.  He would be left standing in a salutatory position.

   b.  The applicant further contends that the typographical error in Item 11c (Reason and Authority) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) makes it unclear whether he was discharged under Army Regulation 635-212 (Unsuitability) or Army Regulation 635-202 (Completion of term of enlistment).  He completed all of the military time for which he had enlisted.  He did not engage in any misconduct and was not absent without leave (AWOL) for more than 1 day.  He explains the day of AWOL was due to his miscalculating when he was supposed to return to duty.  He was never given the opportunity to make up the day of AWOL.

   c.  The applicant states he never filed a formal complaint against his commanding officer for the unfair treatment and wrongdoings he received during his military service, including the inappropriate “other than dishonorable” discharge status.  He attributes his lack of filing such a complaint to his being young and not possessing the knowledge to follow the appropriate military administrative procedures.  Also, he felt being an African-American would probably have hindered a favorable judicial ruling on his behalf.

3.  The applicant provides copies of:

* Standard Form 89 (Report of Medical History) dated 22 December 1970
* DD Form 214 effective 10 May 1971
* Letter from the Department of Veterans Affairs (VA) dated 2 July 2013
* Letter from the VA dated 31 July 2013
* VA Form 21-0958 (Notice of Disagreement) dated 5 August 2013
* VA Form 21-4138 (Statement in support of Claim) dated 5 August 2013
* Extract of Department of Veterans Affairs (VA) CFR 38 3.12
* Title 10, U.S. Code (USC), Section 972 (Members: Effect of Time Lost)
* Army Regulation 601-280 (Total Army Retention Program), pages 12,13,14 only
* Army Regulation 635-212 (Personnel Separations – Discharge Unfitness and Unsuitability) pages 1 and 2 only



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.  On 8 April 1969, the applicant enlisted in the Regular Army.  He completed initial training as a field artilleryman.

3.  On or about 26 September 1969, the applicant departed the United States for duty in the Federal Republic of Germany (FRG).  He accepted nonjudicial punishment (NJP) on:

	a.  13 November 1969, for disobeying a lawful order and being contemptuous toward his superior noncommissioned officer; and

	b.  18 September 1970,  for disobeying a lawful order, being disrespectful to a commissioned officer, and twice being disrespectful toward two different noncommissioned officers.

4.  On 7 January 1970, the applicant was convicted by a special court-martial of being disorderly in quarters and four specifications of breaking restriction.

5.  On 11 December 1970, the applicant underwent a psychiatric evaluation.  The unit had cited the applicant’s conduct and efficiency as being below standards for retention in the service.  He had received three NJPs (one was still pending) and one court-martial.  During the interview the applicant was alert, oriented and coherent.  There was no evidence of psychosis or organic brain disorder.  His mood and affect appeared to fluctuate appropriately.  His intellectual capacity appeared to be overage.  He presented an immature personality.  He was psychiatrically cleared for action deemed appropriate by the command.

6.  On 8 January 1971, the applicant's commander recommended him for separation due to unfitness under the provisions of Army Regulation 635-212.  The commander stated that the applicant’s habits and traits of character was manifested by repeated commission of petty offenses and habitual shirking.

7.  On or about 18 March 1971, the applicant consulted with counsel and waived consideration of his case by a board of officers; waived representation by counsel; and did not elect to submit a statement in his own behalf.

8.  On 27 April 1971, the appropriate authority approved the recommendation for discharge and directed that he be discharged due to unfitness and issued a      DD Form 258A (Undesirable Discharge Certificate).

9.  On 10 May 1971, the applicant was discharged under conditions other than honorable.  He had completed 1 year, 11 months, and 2 days of creditable active duty service, and had 61 days of lost time.

10.  The applicant’s DD Form 214 shows in Item 11c that 202 was struck over with 212.  This form also shows a separation program number (SPN) of 283 indicating he was discharged due to misconduct - AWOL.  

11.  The applicant’s DA Form 20 (Enlisted Qualification Record) indicates that he was in confinement for a period of 61 days.  There is no indication that he was ever AWOL.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided that members were subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Personnel Separations):

	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 (emphasis added), 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 requested, in effect, correction of his military records by changing the reason and authority for and upgrading of his undesirable discharge because he was discriminated against, disrespected, and not treated equally with the white Soldiers.

2.  The applicant has not provided sufficient argument or convincing evidence showing that his discharge was unjust and should be upgraded.  His contentions that he was discriminated against and treated unfairly have not been sufficiently documented.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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

5.  In view of the above, the applicant’s request should be denied.

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)                                         AR20130021510



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ABCMR Record of Proceedings (cont)                                         AR20130021510



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