IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20100030441 


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 and that his reenlistment eligibility (RE) code be changed.  

2.  The applicant states that clemency is warranted because it is an injustice for him to suffer the adverse consequences of his discharge his whole life.

   a.  He states his ability to serve in the Army was impaired because he was young and immature.  He also states that his problem with drugs and alcohol contributed to his dizziness, fainting spells, and periods of unconsciousness as noted in his medical history.

   b.  He concludes that under current standards he would not have been issued the type of discharge that he received.

3.  The applicant provides a copy of a Standard Form (SF) 89 (Report of Medical History), dated 17 November 1979, 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 was inducted into the U.S. Army for a period of 24 months on
18 March 1968.  At the time he was 19 years of age.  Upon completion of training he was awarded military occupational specialty (MOS) 12A (Pioneer).

3.  On 30 April 1969, the applicant pled guilty to and was found guilty of a felony. He was sentenced to be punished by imprisonment in the California State Prison for the term prescribed.  The court ordered that the execution of the sentence be suspended for a period of 5 years (with probation) and that the applicant be confined in the County Jail of the County of San Luis Obispo, California for a period of 6 months, with the sentence being set aside if the U.S. Army accepted the applicant's return for his disposition.  The applicant was also ordered to pay a fine in the amount of $1,000.00 to the County of San Luis Obispo.  The court order placing the applicant on probation was promulgated on 19 May 1969.

4.  On 19 September 1969, the applicant's commander notified the applicant that he was initiating action to discharge him from the U.S. Army under the provisions of Army Regulation 635-206, paragraph 22, based on conviction by a civil court.  The applicant was advised of his rights and the separation procedures involved and that he could be issued an Undesirable Discharge Certificate.

5.  On 27 September 1969, the applicant acknowledged receipt of the notification of separation action for misconduct (civil conviction) and he:

   a.  waived consideration of his case by a board of officers;
   
   b.  waived a personal appearance before a board of officers;
   
   c.  elected not to submit statements in his own behalf;

   d.  waived representation by military or civilian counsel; and

   e.  was advised he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life in the event a discharge under conditions other than honorable was issued to him.

6.  On 3 November 1969, the applicant certified that he would not appeal his conviction.

7.  On 12 November 1969, the major general serving as the general court-martial convening authority, and the authorized separation authority in the applicant's case, accepted the applicant's waiver of a hearing before a board of officers and approved the applicant's discharge.  The commander also directed that the applicant be issued an Undesirable Discharge Certificate.

8.  An SF 89, dated 17 November 1969, completed by the applicant as part of his separation medical examination shows the applicant indicated he previously had or (then) had color blindness, dizziness or fainting spells, and periods of unconsciousness.

9.  An SF 88 (Report of Medical Examination), dated 17 November 1969, completed by the examining physician at the time of the applicant's separation medical examination shows the applicant was found medically qualified for separation.

10.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 19 November 1969, shows he was discharged under the provisions of Army Regulation 635-206, based on misconduct (conviction by civil court), with an undesirable discharge.  He was assigned separation program number (SPN) "284" and an RE code of 3.

   a.  He completed 10 months and 25 days of net active service.

   b.  Item 26a (Non-Pay Periods Time Lost) and item 30 (Remarks) show he had a total of 280 days of time lost under Title 10, U.S. Code, section 972.

11.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct, which included conviction by civil court.  This regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities or action was taken against them which was tantamount to a finding of guilty for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of one year.  An undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 3, 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.

   b.  Chapter 3, 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.

14.  Army Regulation 635-5-1 (Separation Program Designators), in effect at the time, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the
DD Form 214.  It shows SPN "284" for enlisted Soldiers discharged under the provisions of Army Regulation 635-206 for misconduct based on civil conviction during the current term of active military service.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons in the Regular Army, U.S. Army Reserve, and Army National Guard.

   a.  Chapter 3 (Enlistment in the Regular Army, Army Reserve, or Army National Guard for Prior Service), paragraph 3-21 (U.S. Army reentry eligibility codes), provides that RE-3 applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable (i.e., ineligible unless a waiver is granted).

   b.  Chapter 4 (Waiver and Non-waiver Enlistment Criteria), paragraph
4-6, provides that a waiver is required for any applicant who has received a civil conviction or other adverse disposition for a criminal offense.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded and his RE code should be changed because he was young and immature.  His problem with drugs and alcohol contributed to his dizziness, fainting spells, and periods of unconsciousness.  He also contends that clemency is warranted because it is an injustice for him to suffer the adverse consequences of his discharge the rest of his life.

2.  Records shows the applicant was advised he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  The applicant's contention that it is an injustice for him to continue to suffer the adverse consequences of his discharge is noted; however, it is not a sufficiently mitigating reason to change his discharge given the fact that he was advised of this matter and he acknowledged he understood the potential adverse impact on his future.

3.  Records show the applicant's discharge under the provisions of Army Regulation 635-206, paragraph 22, based on misconduct (civil conviction) was administratively correct and in compliance with applicable regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, records show the applicant was properly and equitably separated from active duty.  Therefore, considering all the facts of this case, the type of discharge, RE code issued, and character of service directed were appropriate.

4.  The applicant's military service records show that he had a total of 280 days (i.e., more than 9 months of time lost) at the time of his discharge and he completed less than 11 months of his 2-year active duty obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

5.  Considering the applicant satisfactorily completed training and was awarded MOS 12A, his contention that he was young and immature is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

6.  Although there is no available evidence that the applicant had an alcohol problem, this is irrelevant.  It is common knowledge that drunkenness is not accepted as a legal excuse in civilian cases even when the offender is known to be alcoholic.  This is illustrated by the imprisonment of alcoholics for drunk driving related offenses.  In addition, despite the medical conditions claimed by the applicant at the time of his separation medical examination, the examining physician found the applicant medically qualified for separation.  Thus, there was no evidence of a medically disqualifying condition at the time of the applicant's discharge and his contention offers no mitigating evidence in this case.

7.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100030441



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ABCMR Record of Proceedings (cont)                                         AR20100030441



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