IN THE CASE OF:	  

		BOARD DATE:	        10 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007201 


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 an honorable discharge.  

2.  The applicant states that he served honorably in Vietnam and has no record of disciplinary action in civilian life.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 enlisted in the Regular Army on 6 November 1964.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 11B (light weapons infantryman).  He was honorably discharged on 15 November 1965 for immediate reenlistment.  

3.  The applicant reenlisted on 16 November 1965, 4 April 1969, and 26 June 1970.  He completed three tours in Vietnam and his highest grade attained was specialist four, E-4.  

4.  On various occasions between 14 November 1970 and 10 September 1971, the applicant accepted four nonjudicial punishments under Article 15, Uniform Code of Military Justice for the following offenses: being apprehended with an unauthorized weapon; failing to go to his appointed place of duty; violating a lawful regulation by being in an off limits area; writing bad checks (three specifications); and possessing false ration card, currency control place, and military identification card.

5.  On 29 March 1972, the applicant was found guilty by the United States District Court for the Eastern District of Louisiana, of one count of distributing approximately 2.179 grams of heroin.  He was sentenced to five years confinement.  It was ordered that following the period of imprisonment, the applicant would be placed on special parole for three years.

6.  On 12 October 1972, the unit commander notified the applicant of his recommendation for his discharge under the provisions of Army Regulation
635-206 by reason of conviction by a civil court.  He was advised of his rights.  

7.  The applicant acknowledged receipt of his notification.  He requested representation by counsel, consideration of his case before a board of officers, and did not submit statements in his own behalf.  He waived his right to appeal his civilian conviction.  

8.  On 3 May 1973, the board of officers convened.  The applicant did not appear, but he was represented by counsel.  The board recommended that the applicant be separated from the service under the provisions of Army Regulation 635-206 with issuance of an undesirable discharge.

9.  On 10 May 1973, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-206 with issuance of an Undesirable Discharge Certificate.

10.  The applicant was discharged from active duty on 11 June 1973.  He completed 2 years, 1 month, and 9 days of creditable active service during the current enlistment and 7 years, 8 months, and 28 days total active military service.  He had 307 days of lost time due to civil confinement.  
11.  On 30 April 1974 and 5 March 1984, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

12.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of 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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant's honorable service in Vietnam is commendable, his service and conduct in civilian life is not sufficiently mitigating to warrant the relief requested.  

2.  The applicant was found guilty by a civil court in March 1972 for distributing a certain amount of heroin.  He was sentenced to five years confinement.

3.  The applicant's service record shows he received four Article 15s during the period under review.  As a result, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either an honorable or general discharge.

4.  It appears the appropriate approving authority determined that the applicant's overall military service warranted an undesirable discharge.  
5.  However, there is no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.  

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)                                         AR20090007201





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ABCMR Record of Proceedings (cont)                                         AR20090007201



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