IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100016826 


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 an upgrade of his undesirable discharge.

2.  He states, in effect, he received punishment under the Uniform Code of Military Justice and was sentenced to 90 days in the Central Confinement Facility for possession of marijuana.  He contends these charges should have been dismissed because he did not have possession of the drug as claimed. 

3.  He argues that it has been more than 30 years since the event took place and it is still hindering him from obtaining medical services and housing benefits through the Department of Veterans Affairs (VA).  He contends that since his discharge, he has achieved many positive accomplishments.  

4.  He provided three personal reference letters from Meridian Behavioral Healthcare, Inc. 

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 record shows he enlisted in the Regular Army and entered active duty on 7 August 1972.  He was awarded military occupational specialty 13A (Field Artillery Basic).  

3.  On 5 September 1972, nonjudicial punishment (NJP) was imposed against him for failing to go to his appointed place of duty at the prescribed time.  

4.  A copy of his DA Form 20 (Enlisted Qualification Record) shows in item 38 (Record of Assignments) he was assigned to B Battery, 1st Battalion, 73rd Field Artillery, Fort Bragg, NC on 5 January 1973.  

5.  NJP was imposed upon him again on 14 May 1973 for three separate occurrences of failing to go to his appointed place of duty at the prescribed time.

6.  On 1 June 1973, NJP was imposed upon him for possession of a controlled substance and for two separate periods of being absent without leave (AWOL) between 14 May and 31 May 1973.

7.  On 5 July 1973, he was once again charged with failure to go to his appointed place of duty at the prescribed time. 

8.  His DA Form 20 shows in item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal expiration term of service (ETS) Date) he went AWOL on 9 July 1973.

9.  On 11 July 1973, his commander conducted a formal inquiry under the provisions of Army Regulation 630-10 (Absence Without Leave and Desertion) concerning the applicant’s unauthorized absence.  The applicant returned to military control on 6 September 1973 and he was barred from reenlistment on 
7 September 1973.  

10.  On 5 October 1973, in accordance with his plea, he was convicted by a special court-martial of going AWOL from 9 July to 7 September 1973.  He was sentenced to 2 months in confinement, a forfeiture of $100.00 pay for 3 months and reduction to pay grade E-1.  On 17 October 1973, the convening authority approved the sentence and ordered it executed.  

11.  A copy of a DA Form 3822-R (Report of Mental Status Evaluation), dated 
25 September 1973 shows his behavior was normal, he was fully alert, and he was cleared for administrative action deemed appropriate by the command.

12.  On 23 November 1973, his unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Enlisted Personnel),
chapter 13, paragraph 13-5a(1), for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He cited the applicant’s conduct and efficiency ratings were unsatisfactory from 17 May to 21 November 1973.  He also noted the applicant had incurred numerous disciplinary infractions and had four counts of NJP and one special court-martial conviction.       

13.  On 23 November 1973, he was advised by counsel on the basis for the contemplated action to separate him for unfitness under the provisions of chapter 13 of Army Regulation 635-200.  He waived his right to representation by appointed counsel, consideration of his case by a board of officers, a personal board appearance, and he elected not to submit a statement on his own behalf.  

14.  On 16 January 1974, the separation authority approved the recommendation for separation and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate).  The Office of the Staff Judge Advocate concurred with the separation authority.

15.  Accordingly, he was discharged on 30 January 1974 with an undesirable discharge under the provisions of Army Regulation 635-200, chapter 13, paragraph 13-5a(1) for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He completed 1 year, 2 months, and 
19 days of total active service with 95 days of lost time.

16.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

17.  He provided three letters of reference which show he completed a 12 - step program for recovery from substance abuse.  The letters also indicate he demonstrated outstanding leadership and responsibility in the community by working with programs such as the Coalition of the Hungry and Homeless and Alachua County Prevention Partnership.  He is also studying to become a minister under the supervision of an ordained minister.  

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 13, paragraph 13-5a(1), provided 


for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  

19.  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.  

20.  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.  He contends his undesirable discharge should be upgraded based on the fact that he was not in possession of an illegal substance as accused.  However, he has not submitted sufficient evidence or a convincing argument to support his contentions.

2.  All requirements of law and regulations were met and his rights were fully protected throughout the separation process.  Further, the type of discharge and the reason for separation were appropriate considering all the facts of the case.

3.  His post-service conduct is noteworthy; however, the ABCMR does not upgrade discharges based on the passage of time and post-service conduct alone.  The available evidence shows his separation was based upon substandard performance as a Soldier which included numerous counts of NJP, conviction by a special court-martial, and confinement.  He had 95 days of lost time due to being AWOL and in military confinement.  Therefore, the quality of his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  Based on the foregoing, the evidence is insufficient to upgrade his undesirable 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)                                         AR20100016826



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ABCMR Record of Proceedings (cont)                                         AR20100016826



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