IN THE CASE OF:	

		BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090011276 


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 be upgraded to a general discharge.

2.  The applicant states the charged offense was only a misdemeanor and/or a juvenile offense.  His confinement was only for 2 days and he was not in an unauthorized absence status.  He adds that he is now very ill and does not want any benefits other than peace of mind.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 7 October 1970, in support of his request.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests the applicant’s discharge be upgraded.  

2.  Counsel states that the applicant is very ill and is unable to leave his home due to the treatment he is undergoing.  He adds that the offense committed is now considered a misdemeanor and does not require jail time and that the applicant was convicted as a juvenile and was given a general discharge under other than honorable conditions.  He also adds that the applicant's 2 days of jail time would not have been considered as a major unauthorized absence.  He concludes that it has been over 30 years since his offense and the applicant has a deep desire to have his discharge upgraded so he may have peace of mind.  

3.  Counsel did not provide any additional documentary evidence in support of the applicant’s request.  

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 show he was inducted into the Army of the United States and entered active duty on 22 April 1968 at age 19.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11E (Armor Crewmember).  The highest rank/grade he attained during this period of military service was specialist four/E-4.

3.  The applicant's records show he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar. 

4.  On 9 March 1969, the applicant was arrested by the Austin, TX, Police Department (PD) for the civil offense of illegal possession and sale of narcotics. 

5.  On 14 July 1969, the applicant was arrested by the Killeen, TX, PD, for the civil offense of illegal possession of marijuana.  

6.  On 5 August 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period on or about 1 August 1969 through 3 August 1969.  His punishment consisted of a forfeiture of 7 days of restriction and 7 days of extra duty.  

7.  On 15 December 1969, the applicant appeared before the 147th Judicial District Court of Travis County, TX, and was found guilty of the civilian offense of unlawful possession of a narcotic drug (marijuana).  The Court sentenced him to a 5-year probated sentence. 

8.  On 8 January 1970, while pending disposition of his previous AWOL, the applicant departed his unit in an AWOL status and was immediately dropped from the Army rolls on the same date.  He returned to his unit at Fort Hood, TX, on 25 January 1970. 

9.  On 6 March 1970, the applicant was arrested by the Austin, TX, PD, for the civil offense of burglary.  The disposition of this charge is not available for review with this case. 

10.  On 11 March 1970, the applicant pled guilty at a special court-martial to one specification of being AWOL during the period on or about 31 January 1970 through 27 February 1970.  The Court sentenced him to a reduction to private first class/E-3 and 30 days of restriction.  The sentence was adjudged on 
11 March 1970 and was approved on 28 May 1970.

11.  On 11 May 1970, the applicant again departed his unit in an AWOL status and on 11 June 1970, he was dropped from the Army rolls.  He was apprehended by civil authorities and returned to military control on 20 July 1970.

12.  On 20 July 1970, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion) for civil conviction.  The applicant subsequently acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived appearance before a board of officers, and elected not to submit a statement on his own behalf. 

13.  The applicant further acknowledged that he understood that he could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  He further understood that as a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life.  

14.  On 20 July 1970, the applicant's intermediate commander recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate and remarked that the applicant was convicted by a civil court and had been AWOL on 7 occasions for a total of 129 days.  He also stated that his poor attitude and discipline had had an adverse effect on the remaining enlisted personnel in the company.  

15.  On 2 September 1970, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-206 for misconduct by reason of civil conviction and directed the applicant be furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  The applicant was accordingly discharged on 7 October 1970.  The DD Form 214 he was issued at the time confirms he had completed a total of 1 year, 11 months, and
7 days of creditable active military service and he had 164 days of lost time. 

16.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of this regulation provided, in pertinent part, that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of one year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General.  Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

18.  Army Regulation 635-200 (Personnel Separations) provides the policies and procedures 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.

19.  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.  The applicant’s contends that his discharge should be upgraded.

2.  The evidence of record shows the applicant was convicted by a civilian court of unlawful possession of a narcotic drug (marijuana) and he was sentenced to a 5-year probated sentence.  The evidence of record further shows that the applicant's chain of command initiated separation action against him and that he was accordingly notified.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  While the applicant's serious offense occurred within the civilian community and his sentence was probated, it clearly brought discredit upon the applicant and the Army.  His overall military service was marred with various types of misconduct that included NJP, a court-martial, multiple instances of AWOL, and multiple instances of civil offenses and police arrest. 

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.

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)                                         AR20090011276



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ABCMR Record of Proceedings (cont)                                         AR20090011276



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