RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  13 January 2004 
	DOCKET NUMBER:  AR2003089612

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

	Mr. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Lana E. McGlynn		Chairperson	
	Mr. Patrick H. McGann		Member	
	Mr. Roger W. Able		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his undesirable discharge be upgraded to general.  He also requests that his records be corrected to show that he did not go AWOL (absent without leave), miss battalion guard, or use marijuana. 

2.  The applicant states that he was only guilty of racial misconduct and felt that the African-Americans were not on his side.  His commander was aware and did not want any racial problems on his records.  He only wanted to do what he had to do to survive.  He also states that the only evidence he has is his word.  The group known as Black Panther stole his military identification (ID) card and put a hole in it.  He later took the ID Card to his first sergeant and was sent to confinement for his protection.  He later faced charges for racial tension to AWOL and was not prejudiced.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of injustice which occurred on 11 March 1976, the date of his discharge.  The application submitted in this case is dated 4 April 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records show he enlisted on 4 March 1975, as a light weapons infantryman.  He served in Korea from 24 July 1975 to 10 March 1976. He was promoted to pay grade E-2 effective 4 July 1975. 

4.  On 31 October 1975, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for possession of marijuana, a controlled substance.  His punishment consisted of a reduction to the pay grade of E-1 (suspended for 6 months), forfeiture of pay, and 45 days restriction and extra duty. 

5.  On 10 November 1975, he was punished under Article 15, UCMJ, for failure to obey a lawful order from his commander.  His punishment consisted of a reduction to E-1 and forfeiture of pay.
6.  Item 21(Time lost under) of his DA Form 2-1 (Personnel Qualification Record) is blank.  Item 21 (Time Lost) of his DD Form 214 shows the entry "NONE."  There is no evidence to show that he missed battalion guard.

7.  The facts and circumstances pertaining to the applicant’s discharge are not present in the available records.  However, his DD Form 214 shows that on 11 March 1976, he was discharged under the provisions of Army Regulation  635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He was furnished an Undesirable Discharge Certificate.  He had a total of 1 year and 8 days of creditable service.

8.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service
in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable
discharge.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors, which would tend to jeopardize his rights.

2.  The type of separation directed and the reasons for that separation were appropriate considering all of the available facts of the case.

3.   The evidence of record shows that he was punished under Article 15, UCMJ), for use of a controlled substance and for failure to obey a lawful order by his commander and was discharged in lieu of trial by court-martial.   

4.  There is no evidence to show that he went AWOL or missed battalion guard.  Therefore, there is no reason to correct these items in the applicant's records.   

5.  The applicant's contentions regarding racial conduct and problems within his unit and confinement for his protection have been considered.  However, there is no evidence in the available records and the applicant has provided no evidence to support his contentions.

6.  Records show the applicant should have discovered the error or injustice now under consideration on 11 March 1976; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 10 March 1979.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lm___  __pm____  __ra___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		____Lana E. McGlynn____
		        CHAIRPERSON

INDEX

CASE ID	AR2003089612	
SUFFIX		
RECON		
DATE BOARDED	20040113	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	219760311	
DISCHARGE AUTHORITY	AR  635-200, chap 10  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	191	
2.		
3.		
4.		
5.		
6.