RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 November 2005
      DOCKET NUMBER:  AR20050003247


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas Howard                 |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Carmen Duncan                 |     |Member               |

      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 discharge under other than honorable
conditions be upgraded to honorable.

2.  The applicant states, in effect, his last discharge does not reflect
his outstanding military achievements, rewards and honorable record.  He
contends he was never found guilty of possession of illegal substances in
his quarters, that he was charged by the German Government for importing
and possession of drugs, and that it was never proven he was guilty.  He
also contends he is looking for assistance in getting much needed
Department of Veterans Affairs (DVA) benefits.

3.  The applicant provides an Honorable Discharge Certificate, dated
17 February 1975; an award certificate for the Bronze Star Medal with "V"
Device; a citation for the Air Medal; certificates of achievement; and
letters of appreciation and commendation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on
18 April 1977.  The application submitted in this case is dated 21 February
2005.
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 enlisted on 20 March 1967 for a period of 3 years.  He
served as an infantryman in Vietnam from 1 December 1967 through 20
November 1968 and was released from active duty on 19 March 1970.

4.  The applicant's DD Form 214 (Report of Transfer or Discharge) for the
period ending 19 March 1970 shows the applicant received the Purple Heart,
the Air Medal, the Army Commendation Medal, and the Bronze Star Medal with
"V" Device for his service in Vietnam, among other awards.

5.  The applicant enlisted on 21 August 1972 for a period of 3 years.  On
17 February 1975, he was honorably discharged for immediate reenlistment.
He reenlisted on 18 February 1975 for a period of 3 years.
6.  On 13 September 1976, while serving in Germany, the applicant was
convicted by a German court of possessing and selling narcotics and
hashish.  He was sentenced to two years of confinement (the punishment was
suspended on probation).

7.  On 25 January 1977, the applicant was notified of his pending
separation under the provisions of Army Regulation 635-206 for conviction
by civil court.

8.  The applicant requested consideration of his case by a board of
officers.  A board of officers convened on 22 March 1977 to determine
whether the applicant should be eliminated from the service under the
provisions of Army Regulation 635-206.  The applicant testified and pointed
out what he felt were injustices or discrepancies with the German trial and
the paperwork.  He testified that he had spent seven months in German
confinement before his release and that the military authorities put him
back into confinement because they said he was a bad influence on the
others.  He also stated that none of the witnesses he requested showed up
at his trial and that the whole mess caused him hardships, not only with
his work but also with his family life.  Under cross examination, the
applicant stated that the money found in his apartment was from his
reenlistment bonus and loan sharking and that he was not involved in drugs.
 He further stated that he counseled Soldiers who were involved in drugs
and that he was cutting and putting the heroin into bags because a Soldier
was going to turn himself in to the commander and ask for help; however,
while they were doing that, the police busted down the door.  The board
found that the applicant was undesirable for further retention in the
military service because of conviction by civil court.  The board
recommended that the applicant be discharged from the Army because of
misconduct (conviction by civil court) with the issuance of a less than
honorable discharge certificate.  On 2 April 1977, the separation authority
approved the request for discharge.

9.  The applicant was discharged with a discharge under other than
honorable conditions on 18 April 1977 under the provisions of Army
Regulation 635-206, for misconduct due to civilian conviction.  He had
served 7 years and 27 days of total active service with 211 days of lost
time due to civil confinement and military confinement.

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

11.  Army Regulation 635-206, in effect at that time, set forth the basic
authority for the separation of enlisted personnel for misconduct.  Section
VI of the regulation provided, in pertinent part, for the separation of
personnel for conviction by civil court.  An undesirable discharge was
normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7, 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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

13.  Army Regulation 635-200, paragraph 3-7, 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.  A characterization of under
honorable conditions may be issued only when the reason for the Soldier’s
separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were noted (that he was never found guilty
of possession of illegal substances in his quarters, that he was charged by
the German Government for importing and possession of drugs, and that it
was never proven he was guilty).  However, a sentence imposed by civil
authorities is not a matter under the jurisdiction of the Army.  The
applicant requested consideration of his case by a board of officers and
had an opportunity to voice his concerns.  He provides no evidence to show
his conviction by a German court of possessing and selling narcotics and
hashish was overturned.

2.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

3.  The applicant's prior honorable service, two honorable discharges, and
numerous awards and decorations were considered.  However, the available
evidence of record shows he committed a serious civil offense while in the
Army. As a result, his record of service was not satisfactory and did not
meet the standards of acceptable conduct and performance of duty for Army
personnel.  Therefore, the applicant's record of service is insufficiently
meritorious to warrant an honorable discharge or general discharge.

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

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 18 April 1977; therefore, the time for the
applicant to file a request for correction of any injustice expired on 17
April 1980.  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
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

TH_____  JI______  CD______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ___Thomas Howard______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003247                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051103                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19770418                                |
|DISCHARGE AUTHORITY     |AR 635-206                              |
|DISCHARGE REASON        |Misconduct due to civilian conviction   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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