MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            1 March 2000                  
	DOCKET NUMBER:    AR1999032063

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Melinda M. Darby 		Member	
	Mr. John Saputo		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:  In effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

APPLICANT STATES:  In effect, that when he enlisted he was a 10th grade 
drop-out and was very young and immature.  He claims that these factors impaired his ability to serve.  He also contends that his age at the time of his enlistment was 16 years and 27 days.  In addition, he indicates that he was the victim of racial discrimination, which also impaired his ability to serve.  He explains that he encountered many instances of discrimination on a daily basis and cites an example of an noncommissioned officer (NCO) who berated him with a flurry of racial obscenities; and then referred him to an officer who continued the verbal assault and then demanded a salute which he refused to do.  This incident resulted in his being charged and court-martialed.  He goes on to indicate that during his tenure at Fort Hood, Texas, racial discrimination was a part of his daily life, he was beaten up frequently, and was told that if he created a fuss over this his life would be made harder.  He further explains that he was happy to be court-martialed and that he would have gladly accepted jail time in preference to remaining in his unit.  He states that he has no evidence to support his charges of racial discrimination, but finds it ironic that the officers and NCO’s who discriminated against him received honorable discharges.  He concludes by claiming that the Army accepted this practice at the time and he is asking that this injustice be corrected at this time.  The applicant has submitted the following documents in support of his application:  a birth certificate; a treatment summary from the Dimensions of Life Program; a letter from a therapist with the Insight Recovery Program; three letters from members of the Volunteers of America Program; a letter from a member of the Lansing, Michigan Chapter of the National Association for the Advancement of Colored People (NAACP); a transcript from the Ross Medical Education Center; a letter from the Assistant Coordinator of the Loaves and Fishes Ministries, a letter from the Associate Director of the Justice in Mental Health Organization; a letter from his Attorney; a letter from the Lansing, Michigan Housing Commission; and a letter from the Housing Resource Center.  

EVIDENCE OF RECORD:  The applicant's military records show:

On 3 April 1967, he entered the Regular Army for 3 years.  During his enlistment processing his date of birth was documented as 7 March 1950, which placed his age at 17 years and 1 month.  The enlistment packet prepared on the applicant at the time included a DD Form 373 (Consent, Declaration of Parent or Legal Guardian), signed by his mother, which provided parental consent for him to enlist in the Armed Forces as a minor.  This form also confirmed the applicant’s date of birth as 7 March 1950.  

He successfully completed basic training at Fort Knox, Kentucky and attended advanced individual training (AIT) at Fort Gordon, Georgia, but failed to complete the course of instruction as a Field Radio Repairman.  He was then assigned to Fort Hood, Texas, where he arrived for duty in October 1967.

His record shows that the highest rank he attained while on active duty was private/E-2, and there are no documented acts of valor, significant achievement, or service warranting special recognition on file.  There is an extensive disciplinary history recorded, which includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on six separate occasions; and his trial and conviction by special court-martial on two separate occasions.  

The applicant accepted his first NJP on 25 April 1967, while still in basic training, for disobeying a lawful order.  He then accepted NJP as follows for the reasons indicated:  19 July 1967, for failure to go to his prescribed place of duty; 1 April 1968, for making a false statement; 7 June 1968, for three specifications of writing worthless checks; 27 June 1968, for making false statements, and 25 July 1968, for speeding on post.  

On 16 February 1968, the applicant was tried and convicted by special 
court-martial for being AWOL, and for disrespect toward a superior commissioned officer.  The resultant sentence included hard labor without confinement for 2 months; a forfeiture of $68.00 per month for 6 months; and a reduction in rank to private/E-1.  On 2 July 1968, he was again tried and convicted by special court-martial, this time for willfully disobeying a lawful order. His sentence included hard labor without confinement for 3 months and a forfeiture of $75.00 per month for 6 months.  

On 2 October 1968, the applicant’s unit commander advised him of the intent to process him for separation for unfitness, under the provisions of Army Regulation 635-212.  The unit commander cited the applicant’s history of misconduct, resentment of authority, failure to do his fair share of work, poor motivation, and detrimental conduct as the basis for taking the separation action.  The commander also indicated that the applicant had failed to respond to repeated counseling, and noted 11 different counseling sessions in support of this statement.  

On 10 October 1968, the applicant acknowledged receipt of the separation action and consulted legal counsel.  After being advised by counsel of the basis for the contemplated action and its possible effects, and on the rights available to him, the applicant completed his election of rights.  In this statement, he waived the following rights:  right to counsel, right to have his case considered by and personal appearance before an administrative separation board; and he elected not to submit a statement of rebuttal in his own behalf.

On 18 October 1968, the appropriate authority approved the separation action on the applicant and directed that he receive an UD.  Accordingly, on 25 October 1968, he was discharged, after completing 1 year, 6 months, and 23 days of active military service. 

On 10 September 1980, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade to his discharge and found that the discharge was proper and equitable in all respects.  In addition, the record shows that in June 1982, the applicant failed to appear in Detroit, Michigan for a scheduled personal appearance review before the ADRB.

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.

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 Board concurs with the findings and conclusions of the ADRB and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations, and this Board found no indication of procedural errors by the ADRB that jeopardized the applicant's rights.

2.  The Board found the applicant's contention, that he was only 16 years of age when he enlisted and his youth and immaturity impaired his ability to serve, was not sufficiently mitigating to warrant relief.  The Board noted the fact that the applicant documented his age as 17 at the time of his enlistment, and that his mother verified this fact by signing a consent form to allow him to enter the Armed Forces as a minor.  

3.  The Board took particular note of the applicant’s claim that he was subjected to racial prejudice during his entire tenure at Fort Hood, and that the Army accepted and excused these practices.  This Board does not condone the abhorrent practice of racial discrimination, and would not let stand any action where racial bias was present.  However, after an exhaustive review of the evidence of record, the Board was unable to find any information that demonstrates that the applicant was the victim of racial prejudice.  Therefore, the Board found no basis to grant relief based on this factor. 

4.  The Board wishes to acknowledge the applicant’s efforts at a successful transition to civilian life and noted the many documents he provided in support of his application.  However, in review of the applicant’s entire service record, the Board found that the efforts and accomplishments, outlined in the applicant’s packet, did not overcome the reason for the discharge and characterization of service granted. 

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  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

___gdp__  __mmd__  __js_____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999032063	
SUFFIX		
RECON		
DATE BOARDED	2000/03/01	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1968/10/25	
DISCHARGE AUTHORITY	AR 635-212	
DISCHARGE REASON	Unfitness	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.0000	
2.		
3.		
4.		
5.		
6.