BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20100008395 


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, an upgrade of his undesirable discharge to a general discharge under honorable conditions. 

2.  The applicant states in effect, that when he joined the Army he enlisted with three of his best friends and he was an excellent Soldier.  In March 1967, he was sent to Vietnam where his unit was continuously under fire.  He spoke of mutilated bodies and the effects that the killing of innocent women and children had on him.  He states that marijuana was everywhere and it appeared to that everyone was smoking it, therefore, he began to use it on a regular basis.  In March 1968, while on leave he went to Mexico with a friend and scored some marijuana.  As they were crossing the border back into the U.S. he was arrested by civil authorities.  He was later convicted and sentenced to federal probation.  He stayed in jail until the military police picked him up.  He was sent to Fort Sam Houston, Texas, where he was awaiting discharge.  While awaiting discharge a Soldier continuously asked him to get drugs for him.  He brought the Soldier some marijuana and he turned out to be a member of the Criminal Investigation Division.  

3.  He states that he had a drug problem due to the war and tried numerous times to get the Department of Veterans Affairs (VA) to treat him for his drug problem and for Agent Orange without results.  His mother also tried to get help for him prior to her death and since her death he has not been able to find any of her paperwork.  He adds that during his tour in Vietnam he was hit on his side by shrapnel and the shrapnel is still in his side today.  He prays that this Board will consider his request and give him the help that he desperately needs.
4.  The applicant submitted a 6-page self-authored statement 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 30 January 1967, the applicant reenlisted in the Regular Army for a period of 3 years after serving 1 year, 2 months, and 21 days of creditable active service.  His military occupational specialty (MOS) was 13B (Field Artillery Crewman).  The highest grade he attained was pay grade E-5.

3.  On 31 March 1968, the applicant was apprehended by civil authorities in Del Rio, Texas for the possession of marijuana and for failing to register and pay a special tax on the marijuana.  On 9 July 1968, the applicant was convicted by a civil court for failure to register and pay the special tax on the marijuana that he unlawfully imported.  He was sentenced to 2 years probation.

4.  On 25 June 1969, the applicant appeared before the Western District Court, Del Rio, Texas, for violation of probation.  The applicant was sentenced to another 3 years of probation.    

5.  Special Orders Number 212, Headquarters, III Corps and Fort Hood, TX, dated 8 September 1969, show the applicant was discharged under the provisions of Army Regulation 635-206, due to misconduct.

6.  The facts and circumstances pertaining to the applicant's discharge are not available for review.  The applicant's military personnel records contain a 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 9 September 1969, that shows the applicant was issued an Undesirable Discharge Certificate.  He had completed a total of 2 years and 
10 months of creditable active service.  He also had lost time from 21 March through 9 July 1968 and from 4 October 1968 through 25 June 1969.
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 provides the basic policy for the separation of enlisted Soldiers.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and the self-authored statement he submitted were carefully considered.  However, there is insufficient evidence to support his request.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its own merits when an applicant requests a change in the discharge.

2.  The evidence of record shows the applicant was tried and convicted by a civil court for the possession of marijuana and for failing to register and pay a special tax on the marijuana.  He was sentenced to 2 years probation.  The applicant’s military record also shows that he again appeared before the Western District Court, Del Rio, Texas, for violating his probation and he was sentenced to another 3 years of probation.  The offense that led to his discharge was a serious act of misconduct, which warranted an undesirable discharge. 

3.  Although the available evidence does not include a copy of the applicant's separation packet with the specific facts and circumstances surrounding his final discharge processing it does include a properly-constituted DD Form 214 that identifies the narrative reason for separation and the characterization of service.  Therefore, government regularity in the discharge process is presumed.


4.  The applicant’s misconduct diminished the quality of his overall service below that meriting an honorable or a general discharge.  Absent independent evidence provided by the applicant to the contrary, it is presumed that the applicant's discharge processing was accomplished in accordance with the applicable regulation and that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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.  

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)                                         AR20100008395



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ABCMR Record of Proceedings (cont)                                         AR20100008395



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