IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100013356 


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, that his undesirable discharge be upgraded.

2.  The applicant states he served his country for over 7 years and was an exceptional Soldier who earned the rank of specialist five/pay grade E-5.  While in Germany, he was involved in a car accident.  As a result he started self medicating and was eventually arrested for possession of street drugs.  He understands he did not follow the guidelines of the military, but believes his lapse in judgment should not override his prior service as an excellent Soldier.  Consequently, he should not have been given an undesirable discharge.

3.  The applicant provides no additional documentation.  However, he indicated that he had submitted copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) and several letters of support, which were not received with 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 12 May 1966, the applicant enlisted in the Regular Army.  He served through a series of reenlistments and assignments both in the United States and overseas.

3.  The applicant accepted the following three nonjudicial punishments (NJP's):

	a.  21 November 1966 for failing to register his privately-owned vehicle,

	b.  22 May 1967 for being disrespectful in language and deportment towards a noncommissioned officer, and

	c.  30 September 1971 for being absent without leave for 7 days.

4.  On 2 May 1972, the applicant was assigned to the 5th Battalion, 6th Air Defense Artillery (ADA) Brigade, located in the Federal Republic of Germany.

5.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions (Flag)), dated 1 March 1973, reported that the applicant had been apprehended for alleged possession of dangerous drugs and carrying a concealed weapon.

6.  Special Orders Number 147, 5th Battalion, 6th ADA Brigade, dated 7 August 1973, reduced the applicant to private, pay grade E-1.

7.  The discharge packet is missing from the applicant's military records.  However, his DD Form 214 effective 13 August 1973 shows he was administratively discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He had completed a total of 7 years, 2 months, and 25 days of creditable active duty service and had 7 days of lost time.

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

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

10.  Army Regulation 635-200, 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.

11.  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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded because he served his country for over 7 years and was an exceptional Soldier.

2.   In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The available records do not contain any evidence of the misconduct that led to the applicant's discharge.  Nonetheless, the applicant has not provided any substantiating evidence or convincing argument to support his contention that his discharge was unjust.

4.  In view of the foregoing, the applicant's request should be denied.



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)                                         AR20100013356



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ABCMR Record of Proceedings (cont)                                         AR20100013356



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