IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110015795


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.

2.  The applicant states:

* he committed the offense [for which he was discharged] when he was    17 years old, prior to his enlistment in the Regular Army
* he served from 2 February 1961 to 5 March 1962 without issue
* he didn't realize the consequences of his discharge
* he is now in a wheelchair and needs treatment at a Department of Veterans Affairs (VA) hospital 

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 24 (Service Record)
* VA Form 21-4138 (Statement in Support of Claim), written in the Spanish language and without translation

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 enlisted in the Puerto Rico Army National Guard (PRARNG), for a 3-year term, on 4 November 1956.  

3.  On 31 July 1959, he was honorably discharged from the PRARNG.  His DD Form 214 confirms he completed 2 years, 7 months, and 28 days of active service during this period of enlistment.  Item 22 (Military Occupational Specialty (MOS) and Number) of his DD Form 214 shows he held MOS 635.10 (Wheeled Vehicle Repairman).

4.  On 17 February 1961, he was inducted into the Army of the United States and assigned to the Company B (Training), U.S. Army Training Center (Caribbean), Fort Buchanan, PR.  

5.  On 14 April 1961, he was apprehended in the company area by civilian authorities, for a narcotics violation.  On 18 April 1961, he was released back to military control pending trial and further disposition of his case.

6.  On 11 December 1961, he was tried by civil authorities at the Superior Court, San Juan, PR, and found guilty of infractions to the Narcotics Law of PR; specifically, possessing, owning, and using narcotics.  

7.  The applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion)) for civil conviction.    On 24 January 1962, the applicant acknowledged receipt of the notification memorandum, and stated his intent not to appeal his civil conviction.

8.  On 8 January 1962, the applicant's immediate commander recommended his separation under the provisions of Army Regulation 635-206.  His chain of command recommended approval with the issuance of an Undesirable Discharge Certificate.

9.  His record is void of any documentation that shows he was advised by counsel regarding the basis for the contemplated separation for civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  

10.  On 20 February 1962, Adjutant General of the PRARNG approved the applicant's discharge under the provisions of Army Regulation 635-206, by reason of civil conviction, and directed that he receive an Undesirable Discharge Certificate.

11.  On 5 March 1962, he was discharged.  His DD Form 214 he was issued at the time confirms he completed a total of 1 year and 15 days of creditable active service.  This form further confirms he received an Undesirable Discharge Certificate, and the characterization of his discharge was under other than honorable conditions.  

12.  On 10 September 1981, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

13.  He provides a VA Form 21-4138; however, it is written in the Spanish language and was not translated.

14.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of this regulation provided, in pertinent part, that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of one year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the chain of command.  Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Personnel Separations) provides the basic policies and procedures for the separation of enlisted personnel.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a civilian court for violating the Narcotics Law of PR.  As required by applicable regulation at the time, his chain of command initiated separation action against him.  He acknowledged receipt of the notification memorandum, and it is not unreasonable to assume he met with counsel and was notified of his rights.  It appears that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  

2.  His actions at the time clearly brought discredit upon himself and the Army, and his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  

3.  The applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct renders his service unsatisfactory; therefore, he is entitled to neither an under honorable conditions (general) discharge, nor 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)                                         AR20110024663



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ABCMR Record of Proceedings (cont)                                         AR20110015795



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