IN THE CASE OF: BOARD DATE: 10 November 2015 DOCKET NUMBER: AR20150005009 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, reconsideration of his request for upgrade of his undesirable discharge to a general, under honorable conditions discharge. 2. The applicant states that he was in the U.S. Army during a period of high racial tension. a. When he was stationed at Fort Benning, GA, there was a racial riot; however, he (as a Cheyenne Indian) and his friend (a Hispanic) did not want to say anything about it to their superiors. b. When he was stationed at Fort Knox, KY, he was drinking with friends in a sergeant's room; the sergeant and the others were African–American. He states that another sergeant saw them through a window and reported the applicant, but he did not report the others because "he was afraid of them." Then, when he was at the bowling alley, someone called his name, he turned around, and some Caucasian Soldiers sucker–punched him. The back of his head hit a radiator and knocked him unconscious. c. When he was traveling from Fort Riley, KS, to Fort Hood, TX, he stopped to see his family at Watonga, OK. He broke his ankle while visiting. He states that he called an Army official at Fort Hood who told him to "stay at Watonga and get some rest and when [he] got better to call them and let them know." When he did call back, he was told that he was absent without leave (AWOL). d. He turned himself in at Fort Sill, OK, but he was not told that he was restricted to the installation. He met some men and drank at a bar. They went driving in a car (he was a passenger) and they were involved in an accident. He was knocked unconscious and in a coma for a couple of days. When he regained consciousness he was told that he was the only person in the car. e. He states that he was treated unfairly because of his race, he was young, and he was not offered help with his alcohol problem. He adds that he did not always do the smart thing; however, he believes his concussions adversely affected his decision-making. f. He concludes by stating that he is a chief in a Cheyenne tribe and he has worked hard to become a better citizen by working in both law enforcement and the trucking industry. 3. The applicant provides a letter of support. 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 (and reconsideration within 1 year of the date of the decision for the original consideration of the case). 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 (or within the policy guidance for reconsideration) 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090000249 on 5 May 2009. 3. The applicant enlisted in the Regular Army on 8 October 1969 for a period of 3 years. Records show he was born in February 1952. He completed basic combat training, advanced individual training, and the basic airborne course. He was awarded military occupational specialty (MOS) 11E1P (Armor Crewman). 4. He accepted nonjudicial punishment (NJP): * on 7 March 1970, for failing to obey a lawful order by drinking beer in the barracks * on 3 April 1970, for being disrespectful in word and deed to his superior commissioned officer 5. On 21 April 1970, the applicant was convicted by a special court-martial of failing to obey a lawful order and breaking restriction. His sentence consisted of confinement at hard labor for 3 months (excess of 2 months suspended) and forfeiture of $25.00 pay per month for 3 months. 6. On 20 August 1970, the applicant was convicted by a special court-martial of being AWOL from 21 June 1970 to 2 August 1970. His sentence consisted of confinement at hard labor for 95 days and forfeiture of $50.00 pay per month for 3 months. 7. On 30 September 1970, the applicant was found medically qualified for separation. Then, on 8 October 1970, a psychiatrist examined the applicant and cleared him for any administrative or disciplinary action. 8. On 25 October 1970, the applicant's commander notified him of his intention to administratively separate him from the service for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). a. The applicant received legal counseling and waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, waived representation by counsel, and declined to submit statements in his own behalf. b. The applicant's unit commander recommended separation under the provisions of Army Regulation 635-212 for unfitness. The bases for his recommendation were the applicant's: * two special court-martial convictions * chronic AWOL * dislike for the military service * lack of self-motivation * negative attitude toward the military c. The unit commander made note that at the time of the automobile accident, on 14 August 1970, the applicant was AWOL from the unit because he had been restricted to the unit area. d. The applicant was counseled by both the confinement facility commander and the chaplain who concluded he was not amenable to further rehabilitation and that any additional efforts would be in vain. The chain of command requested a waiver for any further rehabilitative measures. 9. On 3 November 1970, the separation authority approved the commander's request for waiver of rehabilitation and also approved the separation action. He directed the issuance of an Undesirable Discharge Certificate. 10. On 6 November 1970, the applicant was discharged under the provisions of Army Regulation 635-212 with an under other than honorable conditions characterization of service. He had completed 8 months and 1 day of creditable active service and he had 169 days of lost time due to AWOL and confinement. 11. On 26 October 1982, the Army Discharge Review Board (ADRB) determined that the applicant was properly discharged. Accordingly, the ADRB denied the applicant's request for an upgrade of his discharge. 12. In support of his request for reconsideration the applicant provides a copy of an undated letter of support from E___ P. W____, Past Chairman, Cheyenne and Arapaho Tribes of Oklahoma and a Vietnam veteran. He states that he has known the applicant all of his life and he also knows the applicant's grandparents, parents, and family background. He attests to the applicant's character as a good family man and citizen, and to his work ethic in both law enforcement and the trucking industry. He notes that the applicant's relatives have served the country during World War I, World War II, Korea, and Vietnam. He adds that the applicant has been selected to fulfil the role as a Cheyenne Chief having fulfilled his traditional vow as a warrior and protector of our Nation. He explains that it is the highest honor bestowed on their warriors and the tradition is held in very high esteem. 13. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate. 14. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 3, paragraph 3-7b, provides that an under honorable conditions discharge 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 request for reconsideration of his request for upgrade of his discharge (because he was young and treated unfairly based on his ethnic background; he was not in an AWOL status when he was hospitalized as a result of an automobile accident; he had an alcohol problem, but was not provided rehabilitation; and based on his good post-service achievements) was carefully considered. 2. The evidence of record shows the applicant was 17 years of age when he enlisted in the Regular Army. He successfully completed training and he was awarded MOS 11E. Thus, his contention that he was young and immature is not supported by the evidence of record. In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 3. There is no evidence of record and the applicant provides insufficient evidence to support his contention that he was treated unfairly based on his ethnic background. 4. The evidence of record shows the applicant was AWOL when he was involved in an automobile accident on 14 August 1970. The evidence of record also shows the applicant was counseled by both his commander and a chaplain; however, the applicant indicated to them that he was not amenable to further rehabilitation measures. Thus, his contention that he was not provided rehabilitation is not easily understood. 5. The applicant's discharge for unfitness under the provisions of Army Regulation 635-212 based on frequent incidents of a discreditable nature with civil or military authorities was administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. Considering all the facts of the case, his separation and the characterization of his service were appropriate and equitable. 6. The evidence of record shows that during the period of service under review the applicant received NJP on two occasions, he was convicted by two special courts-martial, and he had 169 days (i.e., more than 5 months) of time lost. Moreover, he completed only about 8 months of his 3-year active duty obligation. Thus, the applicant's record of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to general, under honorable conditions discharge. 7. The applicant's post-service conduct was considered. However, his post-service conduct is insufficient as a basis for upgrading his discharge. 8. Therefore, in view of all of the foregoing, there is an insufficient basis for granting 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090000249, dated 5 May 2009. ___________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) AR20150005009 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005009 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1