IN THE CASE OF:	  

		BOARD DATE:	    3 April 2012

		DOCKET NUMBER:  AR20110018002 


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 general discharge to fully honorable.  

2.  He states, in effect, his court-martial action was overturned and all of his pay and allowances were restored.  

3.  He provides his DD Form 214 (Report of Separation from Active Duty).  

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 Regular Army on 28 September 1974 for a period of 2 years.  He completed basic and advanced individual training and 
was awarded military occupational specialty 11B (Light Weapons Infantryman). He served in Germany from 11 February 1975 to 12 May 1976.  The highest grade he held was private first class (PFC)/E-3.

3.  On 27 April 1976, he was convicted contrary to his plea by a special court-martial of wrongfully having in his possession 0.08 grams, more or less, of heroin.  He was sentenced to confinement at hard labor for 165 days, a forfeiture of $50.00 pay for 5 months, and to be discharged from the service with a bad conduct discharge.  

4.  On 8 July 1976, the court-martial convening authority approved the sentence.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

5.  Special Court-Martial Order Number 306, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, dated 17 September 1976, indicated the applicant served the period of confinement adjudged on 27 April 1976 and he was restored to duty pending completion of the appellate review.  

6.  On 28 February 1977, the U.S. Army Court of Military Review set aside the findings of guilty, and the sentence, and the charge was dismissed.  

7.  Special Court-Martial Order Number 104, Headquarters, U.S. Disciplinary Barracks, dated 9 March 1977, stated the applicant’s findings of guilty and the sentence were set aside and the charge was dismissed.  All rights, privileges, and property of which the accused had been deprived by virtue of the findings of guilty and the sentence so set aside would be restored.  

8.  The applicant was discharged from active duty on 24 March 1977 under the provisions of Army Regulation 635-200, chapter 2, at the completion of required active service.  He completed 2 years, 5 months, and 27 days of active military service with no lost time.  

9.  Army Regulation 635-200 (Enlisted Separations), in effect at the time of his discharge, granted discretion to the Soldier’s immediate commander to determine whether an honorable or general discharge characterization was appropriate at the expiration of term of service.  Army Regulation 635-200, currently in effect, requires a characterization of honorable when Soldiers separate at the expiration of their term of service.




DISCUSSION AND CONCLUSIONS:

1.  The applicant states his case was overturned and all of his pay and allowances were restored.  After a careful review of the applicant's overall military record, it appears that there are several mitigating factors that would merit an upgrade of his characterization of service to fully honorable.  

2.  The applicant’s service record shows he was convicted by a special court-martial on 27 April 1976 for wrongfully possessing heroin.  However, the U.S. Army Court of Military Review set aside the findings of guilty, and the sentence, and the charge was dismissed.  

3.  The applicant was returned to duty and allowed to complete his required period of active service.  The Army Regulation currently in effect requires a characterization of honorable when a Soldier is separated at the expiration of their term of service.

4.  During the applicant's tenure on active duty, he was advanced to PFC and has no other record of disciplinary actions taken.  

5.  In view of the applicant's overall record and the absence of any other legally substantiated derogatory information it would be equitable to upgrade his general discharge to fully honorable.  

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  voiding the applicant's current DD Form 214 for the period ending 24 March 1977;
   
   b.  issuing the applicant a new DD Form 214 to reflect his character of service as "honorable"; and

   c.  issuing the applicant an Honorable Discharge Certificate with a discharge date of 24 March 1977.



      ___________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)                                         AR20110018002



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ABCMR Record of Proceedings (cont)                                         AR20110018002



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