IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110003336 


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 to a general discharge under honorable conditions.

2.  The applicant states his discharge characterization is unjust because it was the result of a one-time civil conviction with a probated sentence.

3.  The applicant does not submit any additional evidence in support 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 22 January 1974, the applicant enlisted in the Regular Army for a period of 3 years.  He held military occupational specialty 44B (Metal Worker).  The highest grade he attained was pay grade E-3.

3.  On 13 May 1975, the applicant received nonjudicial punishment (NJP) for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was a forfeiture of $50.00 pay (suspended for 60 days) and 14 days of extra duty.

4.  On 20 October 1975, the applicant received NJP for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was a reduction to pay grade E-2, 14 days of extra duty, and 7 days of restriction.

5.  On 14 May 1976, the applicant received NJP for failure to go at the prescribed time to his appointed place of duty.  His imposed punishment was a forfeiture of $50.00 pay and 7 days of extra duty.

6.  On 24 May 1976, the applicant was reported as being absent without leave (AWOL).

7.  On 26 May 1976, the applicant was apprehended by civil authorities for the possession and sale of marijuana to a narcotics agent.  The applicant was placed in civil confinement pending trial.  The civilian court conviction is missing from his record; however, the applicant was released from civilian confinement on 12 August 1976.

8.  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 (Report of Separation from Active Duty) that shows he was discharged on 16 December 1976 under the provisions of Army Regulation 
635-206 (Personnel Separations – Misconduct) for conviction by a civil court.  It further shows that at the time of discharge he completed a total of 2 years, 7 months, and 21 days of creditable active service with 95 days of time lost due to AWOL and civil confinement.

9.  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.

10.  Army Regulation 635-206, then in effect, provided 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.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his undesirable discharge should be upgraded to a general discharge because it was the result of a one-time civil conviction with a probated sentence was carefully considered and found to be insufficient in merit.  There is no evidence in his military record and the applicant did not present any evidence that shows the discharge he received in 1976 was unjust or unfair.

2.  The evidence of record shows the applicant received NJP on three occasions for leaving his appointed place of duty without proper authority and he was tried and convicted by civil authorities for the sale of marijuana.  The applicant's misconduct clearly diminished the overall quality of his service below that meriting an honorable or general 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.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would have jeopardized his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

5.  In view of the foregoing, there is no basis for granting the applicant's request.


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 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)                                         AR20110003336



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ABCMR Record of Proceedings (cont)                                         AR20110003336



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