IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110015724 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states in the past, he has not been the most respectable person.  He has tried to change his life by living by the laws of our country.  His past has haunted him knowing he disgraced his country and his family.  His records are correct; however, after living ashamed for 38 years he is asking for forgiveness.  Now that he has aged, the person that he was has not existed for some time.

3.  The applicant provides two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), two certificates, an order, a criminal record check, and four statements of support.

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's records show he enlisted in the Regular Army (RA) on 26 January 1968 and he held military occupational specialty 63B (Wheeled Vehicle Mechanic).

3.  On 25 February 1969, he was discharged for the purpose of immediate reenlistment.  On 26 February 1969, he reenlisted in the RA.  

4.  He was awarded the National Defense Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Vietnam Service Medal with three bronze service stars, and the Vietnam Campaign Medal with Device (1960).

5.  He served in Vietnam from 5 December 1969 to 4 December 1970.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), while in Vietnam as follows:

* On 20 April 1970, for sleeping on duty while being posted as a sentinel in a hostile fire area
* On 25 May 1970, for disobeying a lawful order
* On 16 July 1970, for failing to go to his prescribed place of duty on two separate occasions
* On 10 September 1970, for disobeying a lawful order

6.  On 2 April 1971, he received NJP under the provisions of Article 15, UCMJ, for disobeying a lawful regulation.

7.  On 2 February 1972, he was apprehended by civilian authorities for smuggling of narcotics and confined to county jail in El Paso, TX.

8.  On 21 April 1972, he was convicted by a civil court of possession of heroin and incarcerated at the Federal Correctional Institution, Seagoville, TX.

9.  In a memorandum, dated 10 July 1972, he was notified that a board of officers had been directed to determine if he should be discharged from the Army under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge - Misconduct), paragraph 33a, for misconduct - civil conviction and that a defense


counsel had been appointed to represent him.  On 12 July 1972, he acknowledged receipt of the notification.

10. The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his records contain Special Orders Number 170, dated 22 August 1972, issued by Headquarters, U.S. Army Air Defense Center and Fort Bliss, Fort Bliss, TX, wherein he was discharged effective 23 August 1972, under conditions other than honorable by reason of misconduct - civil conviction during current term of active military service.

11.  The DD Form 214 he was issued for this period of service confirms he was discharged on 23 August 1972, under the provisions of Army Regulation 635-206, section VI, by reason of misconduct (convicted or adjudged a juvenile offender by a civil court during current term of active military service) with an under other than honorable conditions characterization of service.  He completed a total of 3 years, 11 months, and 4 days of creditable active service with 204 days of time lost due to confinement by civilian authorities. 

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  The applicant provides four statements of support, one undated and three dated between 14 January 2010 and 2 June 2011, wherein several friends and his pastor stated he is a church-going, honest, gentle, kind man, who does not drink and drive, and has the utmost integrity. 

14.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel and establishes policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  A discharge under conditions other than honorable was normally appropriate for a Soldier discharged under this regulation.

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

16.  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.  The evidence of record shows the applicant was convicted by a civil court for possession of heroin and sentenced to confinement in a Federal prison.  Accordingly, his immediate commander initiated separation action against him, he was notified of the separation action, and a defense counsel was appointed to represent him.  In the absence of evidence to the contrary, it can be presumed his separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  In addition, he demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on five occasions for sleeping on duty in a hostile area, disobeying a lawful order on two occasions, failing to report to his prescribed place of duty on two occasions, and disobeying a lawful regulation.  

3.  In view of the foregoing, the type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20110015724





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ABCMR Record of Proceedings (cont)                                         AR20110015724



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