BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20110005919 


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, an upgrade of his undesirable discharge.

2.  The applicant states his discharge was unjust because he was mentally incompetent at the time of his service.  He believes he was taken advantage of because of his mental disability and inability to read.  He also believes he was set up to have marijuana on him when he did not.

3.  The applicant does not provide 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 12 June 1969, the applicant was inducted into the Army of the United States for a period of 2 years.  On 31 July 1969, the applicant was reported as being absent without leave (AWOL).

3.  On 29 August 1969, the applicant was apprehended by civil authorities for driving without a license and for possession of marijuana.  The civilian court conviction is missing from his record; however, the applicant was released from civilian confinement on 4 March 1970 and returned to military control on 5 March 1970.

4.  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 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 17 April 1970 for conviction by a civil court under the provisions of Army Regulation 635-206 (Personnel Separations – Misconduct).  It further shows he completed a total of 2 months and 3 days of creditable active service with 248 days of time lost due to AWOL and civil confinement.

5.  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.

6.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph 33 of the regulation provided that members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities or action taken against the Soldier which was tantamount to a finding of guilty of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year, (b) when initially convicted by civil authorities of an offense which involved moral turpitude regardless of the sentence received or maximum punishment permissible under any code, or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.

7.  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.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR 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's contentions that his undesirable discharge should be upgraded because he was mentally incompetent and that he was set up with the marijuana charges were 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 1970 was unjust or unfair.

2.  The evidence of record shows the applicant was reported as being AWOL on 31 July 1969.  On 29 August 1969, the applicant was apprehended by civil authorities for driving without a license and for possession of marijuana.  The applicant's record indicates he was convicted by a civil court and was released from civilian confinement on 4 March 1970.  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.  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)                                         AR20110005919



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ABCMR Record of Proceedings (cont)                                         AR20110005919



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