BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090012462 


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 an upgrade of his undesirable discharge (UD).

2.  The applicant states, in effect, he needs help from the Department of Veterans Affairs (VA) and believes he was too severely punished by the State of Alaska and the Army.  He states he was 19 years old at the time of his conviction of selling one hit of LSD (lysergic acid diethylamide).  He further states the only conviction he has had since he got out of the military was a driving under the influence (DUI) offense in 1991.  Since then, he has lived a good life and has had no alcohol or drug-related offenses.

3.  The applicant provides no 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 he enlisted in the Regular Army (RA) on 15 May 1968, and that he was trained in and awarded military occupational specialty (MOS) 63C (General Vehicle Mechanic).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to specialist four (SP4)/E-4 on 14 November 1968 and that this is the highest grade he attained while serving on active duty.  It also shows he was reduced to private first class/E-3 (PFC/E-3) for cause on 26 August 1970.  Item 41 (Awards and Decorations) shows he earned the National Defense Service Medal (NDSM), Parachutist Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record documents no acts of valor or significant achievement.

4.  The applicant's disciplinary history 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 two separate occasions for the offenses indicated:  20 September 1969, for being derelict in the performance of his duties on 17 September 1969; and 26 August 1970, for failing to go at the time prescribed to his appointed place of duty (guard mount) on 22 August 1970.

5.  The applicant's disciplinary history also includes a civil conviction for vagrancy in the District Court for the State of Alaska, Fourth Judicial District, Fairbanks, AK, on 14 September 1970.

6.  On 17 December 1970, in the Superior Court for the State of Alaska, the applicant was found guilty of the offense of sale of a depressant, hallucinogenic, or stimulant drug.  He was sentenced to 3 years of civil confinement (2 years suspended) and 2 years of probation.

7.  On 2 December 1970, after he had been notified by his commander that action was being initiated to separate him under the provisions of Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)) because of his civil conviction, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and of his rights in connection with the action.

8.  Subsequent to receiving legal counsel, the applicant completed an election of rights in which he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel.  He also elected not to submit a statement in his own behalf and confirmed he did not wish to appeal his sentence of 3 years of confinement,
2 years suspended.  

9.  On 15 December 1971, the unit commander submitted a request that the applicant be eliminated from service because of his conviction by civil authorities and that he receive a UD.  The unit commander stated that the applicant's performance in the unit had been unsatisfactory and that he had been counseled on several occasions to no avail.  He finally stated that it would be in the best interest of the Army to discharge the applicant as undesirable.

10.  On 18 January 1971, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-206, by reason of civil conviction and directed the applicant receive a UD.  On 9 February 1971, the applicant was discharged accordingly.

11.  The DD Form 214 issued to the applicant upon his discharge shows he was separated under the provisions of Army Regulation 635-206, by reason of civil conviction and that he received a UD.  It further shows that at the time of his discharge he had completed a total of 2 years, 7 months, and 3 days of creditable active military service and had accrued 52 days of time lost due to confinement.

12.  There is no indication in the record that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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.  A 
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.  

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the current Army policy for enlisted separations.  Paragraph 3-7a provides that an honorable discharge (HD) 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.

15.  Paragraph 3-7b of the same regulation provides that a general, under honorable conditions discharge (GD) 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 contended that his UD should be upgraded because he needs help from the VA and because the punishment he received from the State of Alaska and the Army was too harsh.  However, there are no provisions that allow for an upgrade of a discharge solely for the purpose of obtaining veterans benefits.  Further, there is insufficient evidence that the punishment he received as a result of his civil conviction was too harsh.

2.  The evidence of record confirms the applicant's separation processing based on his civil conviction was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record documented no acts of valor or significant achievement; however, it reveals a disciplinary history that includes his acceptance of NJP on two separate occasions, a civil court conviction prior to the one that resulted in his separation, and a record of unsatisfactory performance in the unit.

4.  The applicant's overall record of service clearly did not support the issue of a GD or HD by the separation authority at the time of his discharge and notwithstanding his good post-service conduct since 1991, his record does not support an upgrade of his discharge at this late date.

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.



      ___________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)                                         AR20090012462



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ABCMR Record of Proceedings (cont)                                         AR20090012462



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