IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100012837 


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 honorable.

2.  The applicant states:

* his discharge from the Army had nothing to do with his military performance
* when he entered the military he did not have a criminal record
* he was indicted and convicted on one count of selling drugs
* this incident happened about 2 years before he entered the Army
* while he was in the Army he was never in any trouble
* he would frequently volunteer for various details while he was off duty
* he enjoyed military life and has always regretted that he was discharged by the Army before he was able to prove his worth

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) 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 enlisted in the Regular Army on 14 January 1976 for a period of 3 years.  He successfully completed his training and was awarded military occupational specialty 72G (switchboard operator).

3.  In May 1976, the applicant was apprehended by civil authorities in Danville, Virginia, for possession of heroin.  On 2 September 1976, he was convicted of selling and sentenced to 15 years of confinement (5 years suspended to probation) and a fine.

4.  On 1 October 1976, the applicant was notified of his pending separation under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) for conviction by a civil court.  A statement, dated 10 November 1976, indicates the notification of proposed discharge was mailed to the applicant on 1 October 1976.  The applicant acknowledged the proposed discharge on 
10 October 1976 and returned it to his unit.  However, no further information was received from the applicant concerning his rights. 
 
5.  On 19 November 1976, the separation authority approved the recommendation for discharge and directed the issuance of an undesirable discharge.

6.  Accordingly, the applicant was discharged on 3 December 1976 with an undesirable discharge under the provisions of Army Regulation 635-206 for his conviction by a civil court.  He served 3 months and 22 days of creditable active service with 208 days of lost time.

7.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct.  The regulation provided for the separation of personnel for conviction by a civil court.  An undesirable discharge was normally considered appropriate.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets for 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.

10.  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 contends he was convicted of one count of selling drugs and that the incident happened about 2 years before he entered the Army.  However, the evidence of record shows he was convicted of selling heroin on 2 September 1976 while serving in the Army. 

2.  The applicant's brief record of service included 208 days of lost time.  It appears he also committed a serious civil offense while in the Army.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or general discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20100012837



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ABCMR Record of Proceedings (cont)                                         AR20100012837



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