MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  19 October 2000
	DOCKET NUMBER:  AR2000038469

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest W. Lutz		Chairperson	
	Ms. Tracy L. Pinson		Member	
	Mr. Christopher J. Prosser		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	     advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of his request for an upgrade of his 
31 July 1950 undesirable discharge to an honorable discharge.

APPLICANT STATES:  In effect, that his undesirable discharge for 2 days AWOL was too harsh considering that he had no other lost time nor was he court-martialed or punished for any other offense; that he was not formally charged with a military offense for the 2 day AWOL; that he did not have an opportunity to discuss with an attorney the effects of an undesirable discharge or requesting a trial by court-martial; that he received no explanation of the nature and effect of an undesirable discharge in lieu of court-martial; and that his undesirable discharge was the result of racism on the part of his first sergeant and his lieutenant.

COUNSEL CONTENDS:  That there are four issues: 1) that the three year statute of limitations on the Army Board for Correction of Military Records (ABCMR) hearing cases should be waived; 2) that the applicant’s undesirable discharge was stigmatizing to the applicant; 3) that the applicant was discharged without adequate explanation of his rights contrary to law; and 4) that the applicant was discharged due to racial prejudice.  The legal counsel also asserts that the applicant was discharged at the convenience of the government with a “blue” discharge for unsuitability that was neither honorable or dishonorable.  
He further contends that in the reconstruction of the applicant’s certificates of military service by the National Personnel Records Center (NPRC), his discharge was erroneously labeled as an undesirable discharge.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 22 September 1982 (copy attached).

The applicant personally appeared before a travel panel of the Army Discharge Review Board (ADRB) on 16 October 1981.  The ADRB found that his undesirable discharge was proper and equitable and denied an upgrade of his discharge.  The applicant’s request for upgrade of his undesirable discharge was considered by the Army Board for Correction of Military Records (ABCMR) on 
22 September 1982.  The ABCMR found no error or injustice in the applicant’s undesirable discharge and denied upgrade of his discharge.  The applicant twice applied for reconsideration but was denied both times, 25 March 1983 and 2 April 1986, based on his failure to submit new evidence not previously considered by the Board.

The applicant again applied to the ABCMR on 4 May 1999 for upgrade of his undesirable discharge.  The application included new evidence: a sworn 

statement by the applicant concerning the circumstances of his discharge, a letter from the National Personnel Records Center with some documents, and a legal brief from the applicant’s counsel.  The staff of the ABCMR reviewed this material and determined that no new evidence had been presented that the ABCMR had not previously considered.  The applicant was notified of this decision by a 29 December 1999 letter from the Director of the ABCMR.  The applicant and his legal counsel wrote on 1 March 2000 and 5 September 2000, respectively, requesting that the ABCMR reconsider the 4 May 1999 application and new evidence attached.  The Board hereby considers the new evidence as follows in these proceedings.

In the applicant’s sworn statement, the applicant recounts the circumstances surrounding his AWOL and discharge.  In pertinent part, he states that he, “was never formally charged with a military offense (for the AWOL)”; that he, “did not have an opportunity to discuss accepting the undesirable discharge and requesting trial by court-martial with an attorney”, and that, “I believe that my first sergeant singled me out for special treatment on account of my race.”  He further states that, “I had never been punished for any military offense up to 31 July 1950 (date of discharge), and had only one day’s time lost due to my AWOL.”  He does state, “I went AWOL on 6 July 1950 and returned to duty on 8 July 1950 at 0800.”  The applicant states that on 31 July 1950, he met with his first sergeant and a second lieutenant.  He says that his first sergeant told him that he had “too many delinquent reports” and the “decision of the board” was that he should be discharged.

The letter from the National Personnel Records Center (NPRC), dated 5 January 1999, states that the applicant’s military records were filed in the area of the center that was involved in a fire on 12 July 1973 and since his records cannot be found, they are presumed to have been destroyed in the fire.  The NPRC did find some alternate records from unit records and the Surgeon General Office (SGO) Hospital Admission Card File.  The unit records for Battery C, 
999th Armored Field Artillery Battalion, showed that, “the authority for (the applicant’s) undesirable discharge on July 31, 1950, was Army Regulation
615-638.  This type discharge action is considered administrative and was not the result of courts-marital action.  Unfortunately, the complete facts and circumstances of this type of discharge, when destroyed, cannot be reconstructed from our alternate record sources.”

The five unit morning reports provided by the NPRC show the applicant’s duty status and reduction in grade between 8 June and 28 July 1950 as shown below

(abbreviations have been spelled out).  The applicant provides a fifth morning 
report which is not readable.

	a.  8 June 1950; duty to sick at station hospital, Fort Benning, Georgia;
Line of Duty – Yes.

	b.  7 July 1950; sick at station hospital to AWOL, effective 6 July 1950.

	c.  8 July 1950; AWOL to duty, 0700.

	d.  28 July 1950; reduced from Private (Pvt) to recruit (E-1), order 15.

	e.  31 July 1950; losses; duty to discharged (Undesirable) under provisions (UP) of AR 615-368.

The NPRC also provided two certificates of military service given on 19 August 1996 in the absence of a copy of the actual Report of Separation.  The first certificate shows that the applicant was a member of the Army of the United States (AUS) from 7 January 1949 to 7 December 1949 when he was honorably discharged as a Private to reenlist in the Regular Army on 8 December 1949.  The second certificate shows that the applicant was a member of the Regular Army from 8 December 1949 to 31 July 1950 when he was given an undesirable discharge at the rank of Recruit (pay grade E-1).

The SGO data provided on the applicant shows two admissions to the hospital at Fort Benning, Georgia, in 1950; one for 2 days duration in April for a keloid (a thick scar resulting from excessive growth of fibrous tissue) on the neck and one for 27 days duration in June-July for an appendectomy.  (Only month and year are given in the SGO admission data.)

The legal brief from the applicant’s counsel, attached to the 4 May 1999 application, addresses four issues which are stated above in these proceedings under COUNSEL CONTENDS.  The copy attached to these proceedings provides full detail.

Army Regulation (AR) 615-368 (Enlisted Personnel Discharge for Unfitness), published 27 October 1948, in effect at the time of the applicant’s discharge and under which the applicant was discharged, states that a soldier may be discharged for unfitness if he exhibits:  “a.  evidence of habits or traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct;  b.  unclean habits, including repeated venereal infections;

c.  repeatedly committed petty offenses not warranting trial by court-martial;
d. habitual shirker;  e.  recommended for discharge by a board of medical examiners, not because of a physical or mental disability, but because he possess a psychopathic (antisocial) personality disorder or defect, or is classified as having “no disease” by the board, and his record of service reveals frequent disciplinary actions because of infractions of regulations and commission of offenses, and/or it is clearly evident his complaints are unfounded and are made with the intent of avoiding service.”  The type discharge directed by the regulation for unfitness is an undesirable discharge.  Discharge under this regulation, “will be for unfitness, except that discharge because of unsuitability may be recommended in borderline cases if military circumstances and the character of service rendered by the individual during his current period of service so warrant.”  Discharge for unsuitability under this regulation may also be recommended in cases involving homosexuality.  According to paragraph 4 of this regulation, the term used on enlisted records and reports of separation for discharge for unfitness is “AR 615-368” and the term to be used for discharge because of unsuitability is “paragraph 2, AR 615-368”.

According to AR 15-185 (Army Board for Correction of Military Records), paragraph 2-4, “Applicants must file an application within 3 years after an alleged error or injustice is discovered or reasonably should have been discovered. The ABCMR may deny an untimely application. The ABCMR may excuse untimely filing in the interest of justice.” 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant was discharged on 31 July 1950 under the provisions of 
AR 615-368 (paragraph 4) for unfitness according to the unit morning report.  Based on the applicant’s comment that his first sergeant told him he had “too many delinquent reports” as a basis for separation action, it is assumed that the applicant was discharged for repeatedly committing petty offenses not warranting trial by court-martial [AR 615-368, paragraph 1.a.(1)(c)].  The AR 615-368 directs an undesirable discharge when a soldier is discharged for unfitness.  There is no evidence that the applicant was discharged for unsuitability for the good of the service in lieu of trial by court-martial.  Consequently, there were no formal court-martial charges preferred against the applicant nor any offer of a discharge in lieu of trial by court-martial requiring legal advice or counsel on the consequences of 
an undesirable discharge.  A soldier cannot apply for discharge under AR 615-368 on his own volition or to avoid the punishment of a bad conduct or dishonorable discharge sentenced by a court-martial.  Discharge under AR 615-368 is initiated by the soldier’s commander based on the soldier’s misconduct.

2.  The applicant’s sworn statement and the legal counsel’s brief make assertions concerning the applicant’s discharge but the assertions must be supported by evidence.  There is no evidence of record or evidence provided by the applicant to support his assertions of racial bias and prejudice or of improper and erroneous discharge procedures.  There is no evidence of lack of counseling concerning the type of discharge or the reason for discharge.  There is no evidence that the applicant was discharged without adequate explanation of his rights, contrary to law.  There is no evidence that the applicant had no other lost time or was never court-martialed or punished for any other offense.  The Board must make its decision based on facts and evidence.  In the absence of any evidence to the contrary, the Board must make an assumption of regularity in the undesirable discharge of the applicant.  As such, there is no basis on which to grant an upgrade of the applicant’s undesirable discharge.

3.  In the interest of justice, the Board has excused untimely filing of the applicant’s application for correction within 3 years after the alleged error or injustice is or should have been discovered.

4.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__el___  ___tp_____  ___cp_____  DENY APPLICATION

Carl W. S. Chun
        Director, Army Board for Correction
          of Military Records

INDEX

CASE ID	AR2000038469	
SUFFIX		
RECON		
DATE BOARDED	20001019	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19500730	
DISCHARGE AUTHORITY	AR 615-368	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.110	Discharge Documents	
2.		
3.		
4.		
5.		
6.