IN THE CASE OF:	

		BOARD DATE:	  08 June 2010

		DOCKET NUMBER:  AR20090020243 


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 his undesirable discharge be upgraded to a fully honorable discharge.

2.  The applicant states his performance as a Soldier was outstanding.

3.  The applicant provides the following documents:

   a.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 26 October 1973.
   
   b.  Discharge orders, dated 24 October 1973.

   c.  Army Discharge Review Board (ADRB) decision.
   
   d.  DD Form 47 (Record of Induction), dated 10 February 1971.
   
   e.  A self-authored statement, dated 4 November 2009.
   
   f.  Nine letters of support or character reference letters and copies of 
11 certificates for completion of training or achievement.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

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

2.  Counsel states the issues the applicant raised amply advance his contentions and substantially reflect the probative facts needed for an equitable review.  

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.  His records show he was inducted into the Army of the United States on 10 February 1971 and he held military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained during this period of military service was specialist four/E-4.

3.  The applicant's records show he served in Panama from on or about 8 July 1971 to 23 February 1972.  His awards and decorations were the National Defense Service Medal and the Expert Marksmanship Qualification Badge with Rifle Bar. 

4.  On 14 February 1972, he departed his unit in an absent without leave (AWOL) status; however, he returned on 15 February 1972.

5.  On 23 February 1972, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the above period of AWOL.  His punishment consisted of a forfeiture of $25.00 pay.

6.  On 28 August 1972, he was arrested by the Canal Zone Police, Balboa, Panama, and charged with the distribution of cocaine.  On 27 October 1972, he was released on bond pending trial.  

7.  On 5 January 1973, he was convicted of the above offense by the U.S. District Court, Balboa, and he was sentenced to serve 3 years in confinement at Gamboa Canal Zone and to be subsequently transferred to the Florida State Prison, Tallahassee, FL.

8.  The facts and circumstances surrounding the applicant's discharge processing are not available for review with this case.  However, his service record contains the following documents:

	a.  Special Orders Number 201, issued by Headquarters, 193rd Infantry Brigade, on 24 October 1973 discharging him from the Army under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and AWOL or Desertion)) effective 26 October 1973 for civil conviction.

	b.  A properly-constituted DD Form 214 that shows the applicant was discharged on 26 October 1973 under the provisions of Army Regulation
635-206 due to conviction by a civil court and he was issued an Undesirable Discharge Certificate.  This form also shows he completed 1 year, 8 months, and 23 days of creditable active service and he had 257 days of lost time.

9.  On 15 May 1974 and 15 June 1981, the ADRB denied his request for an upgrade of his discharge.

10.  He submitted the following documents:

	a.  A self-authored statement, dated 4 November 2009, wherein he stated that he was overwhelmed with the idea of leaving home upon his enlistment.  However, he did very well in Panama and received accelerated promotions.  He was then introduced to cocaine which was non-addictive at the time.  This disease, together with alcoholism, ultimately destroyed his career.

	b.  Multiple certificates for completion of training, achievement, and satisfactory completion of various levels of drug and alcohol recovery programs.  He also provided certificates to show his outstanding service as a security guard and anger management and security guard training.


	c.  Multiple letters of recommendation and/or character reference letters as follows:

		(1)  A letter, dated 2 November 2009, from a former servicemember and current Department of Veterans Affairs employee wherein he states he has known the applicant for 15 years and the applicant has made amends to correct the misdeeds in life.

		(2)  An undated letter from an adult school security guard trainer wherein he states the applicant maintains an excellent standing with respect to performance. He recommends an upgrade of his discharge.

		(3)  A letter, dated 22 October 2009, wherein a chaplain states the applicant has shown strength of character marked by honesty, humility, openness, and determination.  He struggles with homelessness and unemployment; but he continues to demonstrate a sincere desire to better himself.

		(4)  A letter, dated 26 October 2009, wherein a minister describes the applicant as a responsible person who continues to show growth.  He communicates well and he is highly competent and able to connect with others.  He strongly recommends the applicant for any position or endeavor.

		(5)  A letter, dated 4 August 2009, wherein a medical coordinator and case manager describes the applicant's positive steps in his efforts to correct a bad pattern of behavior, overcome alcohol and drugs, and his demonstrated efforts to improve his life.

		(6)  A letter, dated 23 October 2009, wherein a career counselor also describes the applicant as a straight forward and a reliable person with a strong character and recommends that his discharge be upgraded.  

		(7)  Three undated letters written by a sponsor and two case managers.  These individuals state the applicant has made tremendous progress in staying sober.  The applicant has made a commitment to improve the quality of life for himself and his family and recommend that he be given a second opportunity.

11.  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.

12.  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.

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’s contends that his discharge should be upgraded.

2.  The facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains a properly-constituted
DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-206 by reason of a civil conviction.

3.  He was convicted by a civilian court for distribution of cocaine and he was sentenced to 3 years in confinement.  It appears that, as required by applicable regulation at the time, his chain of command initiated separation action against him and that he was presumably notified.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.


4.  The applicant's efforts in improving his quality of life and his attempts to overcome his problems were considered along with the character reference letters that he provided with his application.  However, his actions at the time clearly brought discredit upon himself and the Army.  His service was marred by misconduct and the available evidence is not sufficient to mitigate his actions.

5.  Based on his record of misconduct his service was unsatisfactory.  Therefore, there is insufficient evidence to support an upgrade of his discharge 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)                                         AR20090020243



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ABCMR Record of Proceedings (cont)                                         AR20090020243



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