IN THE CASE OF:
BOARD DATE: 6 November 2008
DOCKET NUMBER: AR20080008422
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his general discharge be upgraded to honorable.
2. The applicant states, in effect, that his faithful service of 12 years duration warrants a better discharge. He believes a better discharge will improve his chances of obtaining a home loan through the Department of Veterans Affairs (VA).
3. The applicant provides no additional documentation.
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 applicants 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 applicants 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 a specialist four, pay grade E-4, with approximately
10 years and 10 months of service in the Army National Guard, when he was convicted, on 29 March 1990 by the State of Louisiana of possession of cocaine with intent to distribute; a felony.
3. On 11 June 1990, his unit commander notified him of the recommended discharge by reason of conviction by civilian court and informed him that he could receive an honorable or a general (under honorable conditions) discharge. He also notified him that he could consult with counsel, appear and present his case before an administrative discharge board, be represented by counsel, submit statements in his own behalf, waive the foregoing right, or withdraw a prior waiver at any time prior to the separation authority's action.
4. The applicant acknowledged the notification, indicated that he did not desire to consult with counsel, that he would not invoke his other attendant rights, and that he did not desire transfer to the Army Reserve.
5. The applicant was reduced from pay grade E-4 to E-3 under the applicable provisions of National Guard Regulation (NGR) 600-200, Enlisted Personnel Management.
6. The separation authority approved the recommendation and directed a general discharge.
7. On 18 June 1990 the applicant was discharged from the Louisiana Army National Guard and as a Reserve of the Army under the provisions of NGR
600-200, paragraph 8-26p.
8. NGR 600-200 provides the policies and procedures for enlisted personnel of the Army National Guard. Chapter 8 covers discharge and separation of enlisted personnel due to unsatisfactory participation and refers to Army Regulation 135-178. Army Regulation 135-178 (Separation of Enlisted Personnel). Paragraph 8-26p applies to separation or discharge for civil conviction and requires an administrative discharge board, unless waived.
9. The Table of Maximum Punishments of the Manual for Courts-Martial shows that a dishonorable discharge and up to 5 years confinement are authorized as punishment for a conviction of possession of cocaine with intent to distribute.
10. There is no indication that the applicant applied to the Army Discharge Review Board during that board's 15-year statute of limitations.
DISCUSSION AND CONCLUSIONS:
1. The discharge proceedings were conducted in accordance with law and regulations applicable at the time.
2. If the applicant had been convicted by court-martial, he could have received a dishonorable discharge and up to 5 years confinement. Clearly this criminal behavior demonstrated that his further membership in the Army National Guard was inappropriate.
3. Given that, in just over 11 years of membership in the Army National Guard, the applicant had not progressed beyond pay grade E-4; the general discharge was fully commensurate with his overall record of military service
4. The Board has no jurisdiction over any aspect of entitlement or eligibility for VA benefits. It does not consider such issues in deciding cases.
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.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X__ ___X____ ____X___ 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.
_______ _ X _______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080008422
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ABCMR Record of Proceedings (cont) AR20080008422
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