BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090015253 


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 he was 17 years old and had a drug problem at the time he joined the Army to become a military policeman.  He was too young to be a military policeman so he was assigned to a medical unit after basic training.  He became addicted to drugs as a result of his duty assignment.  He states he was arrested, charged, and sentenced by civil authorities for breaking into a pharmacy while he was home on leave.  He continues that when he returned to his unit he was discharged from the military.  He has not had a problem with drugs in over 35 years.

3.  The applicant provides no additional documentation in support of this case.

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 was born on 22 February 1950 and enlisted in the Regular Army on 25 March 1968 at 18 years of age.  He successfully completed basic training and was then assigned for training at Fort McClellan, Alabama, as a Medical Supply Specialist.

3.  On 1 July 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for the period 5 June 1968 through 17 June 1968.

4.  On 23 July 1968, the applicant accepted NJP under Article 15, UCMJ, for being AWOL for the period 3 July 1968 through 9 July 1968.

5.  On 13 September 1968, the applicant accepted NJP under Article 15, UCMJ, for being AWOL for the period 2 September 1968 through 3 September 1968.

6.  On 3 September 1968, the applicant was apprehended by Marshfield, Massachusetts, civil authorities and was charged with larceny.  On 15 October 1968, the applicant pleaded guilty and was sentenced to 1 month in the Plymouth House of Correction, in Plymouth, Massachusetts.

7.  On 19 September 1968, the applicant was advised by his company commander that he was initiating a request to discharge him under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct).  He was advised that he could request appointment of military counsel to represent him and, in his absence, represent his case before a board of officers.  He was also advised that he could submit statements in his own behalf or waive the foregoing rights in writing.  The applicant indicated that he waived appointment of military counsel, he waived consideration of his case by a board of officers, he did not desire to provide a statement in his own behalf, and he did not intend to appeal his conviction.

8.  On 27 September 1968, the applicant's commander submitted a recommendation to discharge the applicant under the provisions of Army Regulation 635-206.  The commander based the reason for separation on the applicant's conviction by a civil court.

9.  On 2 December 1968, the appropriate authority approved the recommendation to administratively separate the applicant and directed he receive an undesirable discharge under the provisions of Army Regulation 
635-206 for a civil conviction.  On 6 December 1968, he was separated after completing 6 months and 26 days of creditable active service with 46 days of lost time due to AWOL and confinement.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 3 August 1977, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable.

11.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for conviction by a civil court.  Paragraph 33 of the regulation provided, in pertinent part, that Soldiers convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

12.  Army Regulation 635-200 provides 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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 completed basic training without any problem, demonstrating that he possessed the ability to successfully perform as a Soldier.  He was 18 years of age when he enlisted and when he departed his unit in an AWOL status.  These facts refute his contention that he was too young.

2.  The applicant's records show that he received three Article 15's, he was AWOL on three occasions, and had one civil confinement during his enlistment.  The applicant completed 6 months and 26 days of creditable active service with 46 days of lost time due to AWOL and confinement.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or a general discharge.

3.  The evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20090015253



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090015253



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1