RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2007
	DOCKET NUMBER:  AR20060014214 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Paul M. Smith

Chairperson

Mr. David K. Haasenritter

Member

Mr. Edward E. Montgomery

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, in effect, that his discharge be upgraded to an honorable or general discharge under honorable conditions.

2.  The applicant states, in effect, that clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of an undesirable discharge, characterized as under other than honorable conditions.  The applicant also states, in effect, that his average conduct, efficiency, and proficiency ratings were pretty good and his record of promotions shows he was generally a good Soldier.  The applicant asserts that the punishment he received was too severe compared with today's standards and adds that he was so close to finishing his tour of duty that it was unfair to give him a undesirable discharge. He further states, in effect, that although he tried and wanted to successfully serve in the Army, his personal and financial problems; alcohol and drug use; and physical, medical, and psychiatric problems impaired his ability to serve.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), with an effective date of 31 March 1975.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 March 1975, the date of his discharge from the Army.  The applications submitted in this case are dated 22 August 2006 and 20 September 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.  The applicant’s military service records show he enlisted in the Regular Army (RA) for a period of 4 years and entered active duty on 26 January 1973.  He was trained in and awarded military occupational specialty 11D (Armor Reconnaissance Specialist).  The highest grade he attained was private first class/pay grade E-3.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.
4.  The applicant's DA Form 20 (Enlisted Qualification Record), Item 38 (Record of Assignments), shows that he was assigned to Combat Support Company,
4th Battalion (Mechanized), 20th Infantry in Panama on 19 June 1973.  Item 33 (Appointments and Reductions) shows that the applicant was appointed to the grade of private (E-1) on 26 January 1973, advanced to private (E-2) on 26 May 1973, reduced to private (E-1) on 2 August 1973, advanced to private (E-2) on
11 October 1973, advanced to private first class (E-3) on 6 February 1974, reduced to private (E-2) on 5 August 1974, and reduced to private (E-1) on
26 March 1975.

5.  On 31 July 1973, the applicant accepted non-judicial punishment (NJP) for violating a lawful general regulation by having in his possession a trace amount of marijuana.  His imposed punishment was forfeiture of $70.00 pay, restriction to the company area for 14 days, and 14 days extra duty.

6.  On 2 August 1973, the applicant accepted NJP for violating a lawful general regulation by having in his possession a trace amount of marijuana.  His imposed punishment was reduction to private/pay grade E-1, forfeiture of $150.00 per month for 2 months, and 30 days extra duty.  The portion of the sentence adjudging forfeiture in excess of $50.00 per month for 2 months and extra duty in excess of 14 days was suspended for 60 days.

7.  The applicant's military service records contain a copy of U.S. District Court for the District of the Canal Zone, Balboa Division, Number 74-202-B, Criminal Judgment and Order of Probation, issued on 21 September 1973.  This document shows, in pertinent part, that the applicant was convicted upon his plea of guilty of the offense of possession of marijuana, in violation of Title 21, United States Code, section 844a.  It was adjudged the applicant be imprisoned in the penitentiary of the Canal Zone at hard labor for 6 months and pay the costs of this action.  It was further ordered and adjudged, in pertinent part, that the execution of said sentence be suspended and the applicant placed on probation pending his good behavior for 2 years.

8.  The applicant's military service records contain a DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 6 May 1974.  This document shows that the applicant's company commander recommended the applicant be barred from reenlistment based on numerous incidents for which the applicant received performance counseling during the period September 1973 and December 1973 and the imposition of NJP on 2 occasions.  The applicant's bar to reenlistment was approved on 12 July 1974.

9.  On 26 July 1974, the applicant accepted NJP for knowingly violating and disobeying a lawful order from his superior noncommissioned officer.  His imposed punishment was reduction to private/pay grade E-2, forfeiture of $88.00 pay, 14 days extra duty, and 14 days restriction (suspended for 30 days).

10.  The applicant's military service records contain a copy of U.S. District Court for the District of the Canal Zone, Balboa Division, Number 6518, Criminal Judgment, dated 6 September 1974.  This document shows, in pertinent part, that it was adjudged that the applicant violated the terms and conditions of the Judgment and Order of Probation entered on 21 September 1973.  This document also shows, in pertinent part, that the Judgment and Order of Probation was revoked, set aside, and the applicant imprisoned in the Jail of the Canal Zone for 90 days.

11.  The applicant's military service records contain a copy of Headquarters,
193rd Infantry Brigade (Canal Zone), Fort Amador, Canal Zone, Special Orders Number 2, dated 3 January 1975, which appointed a Board of Officers for the period 1 January 1975 through 31 March 1975.  These orders show that the special instructions stated, in pertinent part, that the Board will be guided by Army Regulation 15-6, Army Regulation 635-200, and Army Regulation 635-206.

12.  The applicant's military service records are absent a copy of the applicant's separation packet.  However, the applicant's military service records contain a copy of Summary of Proceedings, dated 13 March 1975.  This document shows, in pertinent part, that the applicant appeared before the Board with his counsel, Captain (CPT) Carlos L______ on 11 March 1975.  The President of the Board explained to the applicant his right to counsel and the applicant indicated he understood his rights and wished to be represented by CPT L______.

13.  The Summary of Proceedings also show that the following exhibits were marked and received into evidence by the President of the Board:  Letter of Notification; Request for Discharge; Notification of Recommendation; Rights by Counsel; Medical Examination; Medical History; Mental Evaluation; Record of Previous Convictions; Checklist for Discharge; Court Order, dated 6 September 1974; Court Order, dated 21 September 1973; Article 15, dated 26 July 1973; Article 15, dated 2 August 1973; Military Police Report, Article 15; dated 26 July 1974; Letter of Reprimand; Statements of Reenlistment; and Case Record Sheet. This document also shows that the applicant personally appeared before the board of officers on 13 March 1975.


14.  The applicant's military service records contain a copy of Headquarters, 193rd Infantry Brigade (Canal Zone), Fort Amador, Canal Zone, Special Orders 59, dated 26 March 1975.  These orders show that the applicant was reassigned to the U.S. Army Transfer Point, Fort Jackson, South Carolina, for separation processing.  The authority for the applicant's separation was Army Regulation 635-206, Section VI, and Commander, 193rd Infantry Brigade (Canal Zone),
2nd Indorsement, dated 25 March 1975, subject:  Discharge for Conviction by Civil Court.

15.  The DD Form 214, issued to the applicant upon his separation, shows that on 31 March 1975 the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 635-206, by reason of misconduct - conviction by a civil court.  The applicant's character of service was "under other than honorable conditions" and he was issued a DD Form 258A (Undesirable Discharge Certificate).  At the time he completed 1 year, 11 months, and 9 days of creditable active service and had 87 days of time lost.

16.  On 28 August 1981, the Army Discharge Review Board, after careful consideration of the applicant’s military service records and all other available evidence, determined the applicant's discharge was proper and equitable and the applicant’s appeal for an upgrade of his discharge was denied.  

17.  Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), in effect at the time of the applicant's separation from active duty, established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of fraudulent entry into the service, conviction by civil court, and absence without leave or desertion.

18.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-7a, 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, 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.

19.  Army Regulation 635-200, paragraph 3-7b, 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.

20.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

21.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

22.  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.  The 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, in effect, that his discharge should be upgraded to an honorable or general discharge under honorable conditions because it is an injustice for him to continue to suffer the adverse consequences of an undesirable discharge.

2.  The evidence of record shows the applicant’s discharge processing was accomplished in accordance with the governing regulation.  The requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The evidence of record shows that the applicant had a recurring disciplinary history of military infractions prior to the civil conviction that ultimately led to his discharge.  The evidence of record also shows that the applicant had almost
1 year and 10 months remaining on his RA enlistment commitment at the time of his discharge.  Moreover, his overall abbreviated service record, which includes his record of appointments and reductions, was not sufficiently meritorious to mitigate the serious misconduct that led to his discharge.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  The applicant fails to provide such evidence.  As a result, the applicant's separation action and proceedings are presumed proper and equitable.

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 this requirement.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 28 August 1981.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 27 August 1984.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___PMS _  ___DKH_  ___EEM _  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 M. Smith______
          CHAIRPERSON




INDEX

CASE ID
AR20060014214
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/01
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19750331
DISCHARGE AUTHORITY
AR 635-206
DISCHARGE REASON
Conviction by Civil Court
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.