RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 November 2007
	DOCKET NUMBER:  AR20070008649 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Carmen Duncan

Member

Mr. Qawiy A. Sabree

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 undesirable discharge be upgraded to a general discharge.

2.  The applicant states that he was told by a President's order that anybody that was discharged for drug related reasons would be automatically upgraded 6 months after his discharge.

3.  The applicant provides no additional documentation in support of his application.

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.  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, 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.  The applicant was inducted into the Army in Oakland, California, on 26 April 1967 and he successfully completed his training as an indirect fire infantryman.  He was promoted to the pay grade of E-2 on 26 August 1967 and he was promoted to the pay grade of E-3 on 4 November 1967.

3.  A Criminal Investigation Division Report of Investigation (CID ROI), dated 11 March 1968, indicates that on 6 March 1968, the Honolulu, Hawaii, police department reported that the applicant and others had been arrested for possession of marijuana.  An investigation disclosed that police observed the applicant and three other individuals smoking marijuana while seated in his car.

4.  On 25 April 1968, the applicant was convicted by civil authorities of unlawful possession of a harmful drug and for unlawful possession of a narcotic drug.  The CID ROI, dated 20 March 1968 indicates that on 5 February 1968 the applicant and two other Soldiers were apprehended by police for suspected drunken driving.  After the apprehension, one of the two Soldiers contacted a fourth person and advised that individual that he, the applicant and the third Soldier were "high" on marijuana and that the vehicle they were traveling in contained marijuana.  A subsequent search of the vehicle, purchased by the applicant and one of the previously mentioned Soldiers, resulted in the discovery and seizure of additional marijuana.  He was sentenced to 5 years of probation and a State reimbursement for attorney's fees in the amount of $125.00.

5.  On 2 May 1968, the applicant was convicted by summary court-martial of being absent without leave (AWOL) from 2 March 1968 until 19 April 1968.  He was sentenced to confinement at hard labor for 1 month, a reduction to the pay grade of E-1 and a forfeiture of pay in the amount of $68.00.

6.  On 6 May 1968, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-206, for misconduct, based on his conviction by civil authorities.  He acknowledged receipt of the notification on 7 May 1968.

7.  The appropriate authority approved the recommendation for discharge on 7 June 1968 and he recommended the issuance of an Undesirable Discharge Certificate.  Accordingly, on 18 July 1968, the applicant was discharged under the provisions of Army Regulation 635-206, for misconduct, based on his conviction by civil authorities.  He had approximately 85 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

8.  A review of the available records fails to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided, in pertinent part, that members convicted by civil authorities would be processed for separation.  An undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation appears to have been accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.



2.  The type of discharge directed and the reasons therefore appear to be appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, he was not discharged solely for drug abuse or illegal use of drugs.  He was discharged as a result of being convicted by civil authorities.  In accordance with the applicable regulation, members convicted by civil authorities are processed for separation.  

4.  Additionally, he was discharged for approximately 85 days due to AWOL and confinement.  There is no evidence in the available record nor has the applicant submitted any evidence to support his contention that he was told that his discharge would be automatically upgraded 6 months after his discharge.

5.  In order to justify correction of a military record the applicant must show 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.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__QAS__  __CD     _  __LDS___  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 for correction of the records of the individual concerned.




___Linda D. Simmons___
          CHAIRPERSON



INDEX

CASE ID
AR20070008649
SUFFIX

RECON

DATE BOARDED
20071114
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  360
144.0000/ADMINISTRATIVE DISCHARGE
2.  626
144.6000/MISCONDUCT
3.  627
144.6100/CONVICT BY CIVIL AUTHORITIES
4.

5.

6.