IN THE CASE OF:	  

		BOARD DATE:	  6 August 2009

		DOCKET NUMBER:  AR20090008456 


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 discharge be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that his discharge should be upgraded because he served in the Army more than 15 months.

3.  The applicant did not provide any additional documents 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.  On 27 September 1974, the applicant enlisted in the Regular Army for a period of 3 years.  He completed the required training and was awarded Military Occupational Specialty (MOS) 76Y (Unit Organization Supply Specialist).  The highest grade he attained was pay grade E-2.

3.  On 26 May 1976, the District Court of Sebastian County, for the State Arkansas, convicted the applicant upon his plea of not guilty to the charges of the delivery and sale of a controlled substance (heroin).  The applicant was sentenced to 15 years in civil confinement.  The applicant appealed the conviction and on appeal the applicant was granted a new trial.  On 29 August 1977, the applicant entered a plea of nolo contendere to the charge of delivery of a controlled substance (heroin) and was sentenced to 5 years in civil confinement.  With this sentence the applicant was given credit for the 726 days already served.  Under Arkansas law a plea of nolo contendere cannot be appealed; therefore, his conviction was final.   

4.  On 12 October 1977, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-206, due to a conviction by a civil court.  It appears that the requirements for a board of officers were waived. 

5.  On 28 November 1977, the Commanding General approved the recommendation and directed that the applicant be reduced to pay grade E-1 and that he be discharged under the provisions of Army Regulation 635-206, by reason of misconduct (civil conviction), with a discharge under other than honorable condition. 

6.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant upon his separation shows that on 22 December 1977 the applicant was discharged in pay grade E-1, with a discharge under other than honorable conditions.  He had completed 1 year, 1 month, and 7 days of creditable active service and 780 days of time lost.  

7.  Army Regulation 635-206 (Conviction by Civil Court), then in effect, provided, in pertinent part, that an enlisted member, who was convicted by a civilian court of an offense for which the authorized punishment under the Uniform Code of Military Justice included confinement of 1 year or more, was to be considered for elimination.  When such separation was warranted, an undesirable discharge was considered appropriate.

8.  Army Regulation 635-200 sets forth the basic policy 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  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.

10.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention, in effect, that his discharge should be upgraded to an honorable discharge because he served in the Army for more than 15 months was carefully considered and found to be insufficient in merit.

2.  The evidence of record shows that the applicant was tried and convicted by a civil court of the delivery and sale of a controlled substance (heroin).  His conviction that led to his discharge was a serious act of misconduct, which warranted 5 years of civil confinement. 

3.  The applicant’s misconduct diminished the quality of his overall service below that meriting an honorable or a general discharge.  He was properly separated for his misconduct and he has submitted neither probative evidence nor a convincing argument in support of his request. 

4.  The evidence of record shows the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.  

6.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient 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)                                         AR20090008456



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090008456



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1