IN THE CASE OF:	  

		BOARD DATE:	        08 JANUARY 2009

		DOCKET NUMBER:  AR20080016305 


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 undesirable discharge be upgraded to a general discharge.

2.  The applicant states, in effect, that his discharge was essentially a case of double jeopardy because he was charged for the same offense twice, once by the civilian authorities and once by the military.  He also states that his service in Korea and in Vietnam, when Agent Orange was being sprayed, should be considered in upgrading his discharge.

3.  The applicant provides no additional documents with 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 records are somewhat incomplete because he was separated on temporary records.  However, the available records show that he enlisted in Indianapolis, Indiana on 12 November 1968, for a period of 3 years.  He completed his training as a water supply specialist and was transferred to Korea in March 1969.  He was advanced to the pay grade of E-3 on 17 May 1969.

3.  On 28 December 1969, he was honorably discharged for the purpose of immediate reenlistment.  On 29 December 1969, he reenlisted for a period of 6 years and assignment to Vietnam.  In April 1970, he was transferred to Vietnam, where he remained until April 1971, when he was transferred to Fort Campbell, Kentucky.  

4.  On 15 July 1971, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty (guard duty).  His punishment consisted of a forfeiture of pay, extra duty and restriction.

5.  He was advanced to the pay grade of E-4 on 4 August 1971 and subsequently received orders transferring him to the Overseas Replacement Station in Oakland, California, for further travel to Vietnam.  He was directed to report to Oakland on 16 April 1972.  He failed to report as ordered and was reported as being absent without leave (AWOL) on 16 April 1972.  He remained absent until he was returned to military control at Fort Campbell on 8 May 1972. 

6.  On 30 May 1972, NJP was imposed against him for being AWOL from 16 April to 8 May 1972.  His punishment consisted of a reduction to the pay grade of E-3 (suspended for 45 days) and a forfeiture of pay (suspended for     45 days).  

7.  The applicant was reassigned to Fort Carson, Colorado with a report date of 24 July 1972.  He went AWOL on 19 September 1972, and on 20 September 1972 he was arrested by civil authorities in Colorado Springs, Colorado and charged with the sale of narcotics (marijuana).

8.  He was returned to military control on 29 December 1972.  On 19 January 1973, he was convicted by civil authorities, pursuant to his plea, of selling marijuana and was sentenced to 3-5 years.  He was immediately placed on probation and elected to not appeal his conviction.

9.  On 20 February 1973, the applicant's commander initiated action to discharge the applicant from the service under the provisions of Army Regulation 635-206 for misconduct due to conviction by civil authorities.

10.  After consulting with defense counsel, the applicant waived all of his rights and declined to submit a statement in his own behalf.

11.  The appropriate authority (a major general) approved the recommendation for discharge on 30 March 1973 and directed that he be furnished an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged under other than honorable conditions on 12 April 1973, under the provisions of Army Regulation 635-206 for misconduct - conviction by civil authorities.  He had served 4 years and 22 days of total active service and had 131 days of lost time due to AWOL and confinement by civil authorities.

13.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 7 September 1977.  He contended at that time that he felt that his discharge was unfair because he was punished for the same offense by civil and military authorities and had not violated any military regulations.  The ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request on 2 March 1979.

14.  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.

15.  Army Regulation 635-200, currently in effect, sets forth the basic authority for the separation of enlisted.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors, which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant's contention that he did not violate any Army regulations has been noted and found to lack merit.  The applicant was incarcerated by civil authorities for selling drugs and was subsequently convicted of that charge, pursuant to his plea of guilty.  Accordingly, the time spent in civil confinement was lost time that was punishable by a punitive discharge.

4.  The applicant's overall record of service has been considered.  However, given the seriousness of his offenses, his record of service alone is not sufficiently mitigating to warrant an upgrade of his discharge.

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.




      _______ _ XXX  _______   ___
               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)                                         AR20080016305





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ABCMR Record of Proceedings (cont)                                         AR20080016305



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