RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2007
	DOCKET NUMBER:  AR20060012351 


	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.


	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, in effect, that his undesirable discharge be upgraded to an honorable discharge. 

2.  The applicant essentially states that his discharge was too severe for just getting caught smoking marijuana.  He also states, in effect, that he was in Vietnam at the time, and that he was not the only one caught smoking marijuana, but that he was the only one discharged for smoking marijuana.

3.  The applicant provides his DD Form 214 and a self-authored statement in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 2 June 1969, the date of his undesirable discharge.  The application submitted in this case is dated 24 August 2006.

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 limitations 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.  It was noted that the applicant’s social security number (SSN) on his application does not match the SSN on the DD Form 214 that he provided.  It is not known if the applicant changed his social security number after his military service; however, as the signatures on both of these documents appear identical, it is believed that the applicant is the proper person to be requesting an upgrade of this undesirable discharge.

4.  The applicant’s military records show that he initially served in the Army National Guard, but that he was discharged on 31 August 1966 because of continuous and willful absences, and became a member of the United States Army Reserve to complete his remaining service obligation.  On 19 February 1968, he was involuntarily ordered to active duty for a period of 18 months and 
3 days.  

5.  On 23 April 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for going absent without leave (AWOL) from 0100 hours on 20 April 1968, and remaining absent until on 
or about 1730 hours on 21 April 1968.  His punishment consisted of restriction for 7 days and extra duty for 7 days.

6.  On 9 February 1969, the applicant again accepted NJP under Article 15 of the UCMJ for going AWOL from 1 February 1969, and remaining absent until on or about 5 February 1969.  His punishment consisted of forfeiture of $53.00, reduction in rank from specialist four/pay grade E-4 to private first class/pay grade E-3, and 14 days of extra duty.

7.  On 7 April 1969, the applicant was convicted by a special court-martial of being drunk at his post, intentionally injuring himself by slashing his left wrist with a C-ration can for the purpose of avoiding his duty as a Rifleman, and unlawfully carrying a straight razor.  His punishment consisted of forfeiture of $97.00 per month for 6 months, confinement at hard labor for 6 months, and reduction in rank from private first class/pay grade E-3 to private/pay grade E-1.  The sentence was adjudged on 7 April 1969, and on 14 April 1969, the sentence was approved and ordered executed, but the execution of that portion adjudging confinement at hard labor was suspended for 6 months.  On 21 April 1969, 
30 days of his suspended and unserved portion of his sentence to confinement at hard labor was vacated and duly executed, and the applicant was ordered to be confined at the United States Army Vietnam Installation Stockade.  

8.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not contained in the available records, the applicant provided a properly constituted DD Form 214.  This DD Form 214 shows that the applicant was discharged under the provisions of Army Regulation 635-212, Paragraph 6a (Frequent Incidents of a Discreditable Nature with Civil or Military Authorities).  It also shows that he was issued a DD Form 258A (Undesirable Discharge Certificate).

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

10.  The applicant essentially stated that his discharge was too severe for just getting caught smoking marijuana.  However, none of the acts of misconduct found in his military records pertained to smoking marijuana.

11.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and 
unsuitability.  Paragraph 6a of this 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. This 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.  However, the regulation provides that an honorable or general discharge certificate may be awarded if the individual has been awarded a personal decoration or if warranted by the particular circumstances in a given case.

12.  Army Regulation 635-200 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 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.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge.

2.  Although the facts and circumstances pertaining to the applicant’s discharge are not in his military records, his DD Form 214 that was issued on 2 June 1969 clearly shows that he was discharged under the provisions of Army Regulation 

635-212 because of his involvement in frequent incidents of a discreditable nature with civil or military authorities.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

3.  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 this requirement.

4.  In view of the foregoing, there is no basis for upgrading the applicant’s undesirable discharge to an honorable or general discharge in this case.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 June 1969; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
1 June 1972.  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

__PS____  ___DH __  ___EM__  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.




_______Paul Smith_________
          CHAIRPERSON




INDEX

CASE ID
AR20060012351
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070501
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19690602
DISCHARGE AUTHORITY
AR 635-212, PARAGRAPH 6A 
DISCHARGE REASON
FREQUENT INCIDENTS OF A DISCREDITABLE NATURE WITH CIVIL OR MILITARY AUTHORITIES
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.5100.0000
2.

3.

4.

5.

6.