IN THE CASE OF:	  

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080012117 


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, in effect, that his undesirable discharge (UD) be upgraded.  

2.  The applicant states, in effect, he was convicted by a state court and not by a military court-martial.

3.  The applicant provides no additional documentary evidence 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’s record shows that after having served an honorable period of active duty service from 10 January 1967 to 25 February 1969, he immediately reenlisted and entered active duty on 26 February 1969, and began the enlistment under review.  He held and served in military occupational specialty (MOS) 64B (Heavy Vehicle Driver).

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows, in 
Item 31 (Foreign Service), that he served in the Republic of Vietnam (RVN)  Vietnam from 24 August 1967 to 22August 1968, and in Germany from 7 May 1969 to 21 December 1969.  Item 22 (Appointments and Reductions) shows that he was promoted to the rank of specialist four (SP4) on 7 January 1969, and that this was the highest rank he held while serving on active duty.  It also shows that he was reduced in rank on three separate occasions, and was last reduced to private/E-1 (PV1) on 1 April 1971.

4.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three dates for the offenses indicated:   24 April 1970, for failing to go at the time prescribed to his appointed place of duty on 22 April 1970; 1 July 1970, for failing to go at the time prescribed to his appointed place of duty on 27 June 1970; and 18 June 1970, for being in the civilian public in an unauthorized uniform on 15 April 1970. 

5.  On 20 November 1970, the applicant was found guilty of unlawful sale of a narcotic drugs (heroin) in the District Court of Bell County, Texas, and was sentenced to confinement for a term of not less than 2 years and not more than 
6 years.

6.  On 15 December 1970, the applicant was advised that he was being recommended for separation for misconduct based on his civil conviction of 
unlawfully selling a narcotic drug.  The unit commander submitted a recommendation to the next higher headquarters with a recommendation that the applicant be discharged with an undesirable discharge in the best interest of the Armed Forces.

7.  The Staff Judge Advocate provided the separation authority a legal review on the applicant's separation packet and confirmed the applicant had been advised of his rights by legal counsel on 17 February 1971, and had elected to waive his rights.  On 1 April 1971 the separation authority approved the applicant's discharge action under the provisions of Army Regulation 635-206, by reason of civil conviction, and directed he receive an UD.  On 16 April 1971, the applicant was discharged accordingly.  


8.  The separation document (DD Form 214) issued to the applicant upon his 
discharge shows he was separated under the provisions of Army Regulation
635-206, and that he was issued an UD discharge.  It also shows that at the time of his discharge, he had completed 3 years, 6 months, and 17 days of creditable active military service and had accrued 84 days of time lost due to AWOL and civil confinement.

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.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section VI of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  An 
UD was normally considered appropriate for members separating under this provision of the regulation.  The separation authority could issue an honorable discharge (HD) or general, under honorable conditions discharge (GD) if it were warranted based on the member's record of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded because he was convicted by a civilian court verses a military court-martial was carefully considered.  However, this factor does not provide a sufficient evidentiary basis to support granting the requested relief.

2.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall undistinguished record of service, which did not support the issue of an HD or GD by the separation authority at the time of his discharge and does not support an upgrade of his discharge.

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


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)                                         AR20080012117



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ABCMR Record of Proceedings (cont)                                         AR20080012117



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