IN THE CASE OF:	  

		BOARD DATE:	  29 March 2012

		DOCKET NUMBER:  AR20110019052 


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 discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states:

* he was charged with possession of marijuana and was offered a plea bargain to get out of jail and go back to the base; it was a setup
* he served 53 days in jail and received 5 years of probation
* no one ever explained anything to him about the conditions or problems signing the plea bargain would have on his military career or life
* his prior service was honorable, except for this situation, which he does not understand
* he had never been arrested
* he was simply doing a friend a favor by giving him a ride on the day of his arrest

*	they were not stopped for any traffic violations, but because they looked suspicious
*	he agreed to the vehicle search because he had nothing to hide
*	the next thing he knew, they were being arrested because the police claimed they found a bag of marijuana on the back seat of his car
*	to this day he has never seen or been shown any marijuana that was claimed to have been found in his car


*	he spent 53 days in jail before he saw a judge, but the other guy was released the next day
*	after his release from jail, he was told by a couple of Army buddies that they had heard the other individual in the car with him was an undercover guy for the local police
*	he has never seen that individual since the day he was released
*	when he appeared before the judge and was charged with possession and told to sign the plea bargain, the other individual did not appear before the judge

* he does not know if it was a setup, but a lot happened without just cause and all he wanted to do was get back to his unit
* his life has been ruined in large part because of his service characterization
* he has no Department of Veterans Affairs (VA) healthcare, other veterans' benefits he feels he's entitled to and desperately needs, or a decent job
* he knows ignorance was no excuse for failing to properly handle the situation, but he really did not know what to do
* he has requested police and trial records, but he gets no response
* he was proud to be in the Army and had planned to make it a career until this incident derailed his life and career

3.  The applicant provides a self-authored statement and eight letters 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 enlisted in the Regular Army on 20 December 1967.  He was honorably discharged on 14 April 1969 and immediately reenlisted on 15 April 1969.  Records show he was awarded military occupational specialties (MOS) 


36K (Field Communications) and 63B (Wheeled Vehicle Mechanic).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E4.

3.  On 14 January 1971, the applicant received a DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, Uniform Code of Military Justice) for failing to go to his appointed place of duty.  His punishment included a 90-day suspended reduction from the rank of SP4/E-4 to private first class (PFC)/E-3

4.  The available record does not contain his discharge package or all the pertinent information surrounding his civilian conviction or sentencing; however, item 42 (Remarks) his DA Form 20 (Enlisted Qualification Record) shows the following entry:

Confined 17 February 1971 to 26 March 1971 by civil authorities at Reeves County, TX.  Charged with possession of marijuana.  Convicted 26 March 1971.  Sentenced to 5 years' probation.

5.  On 11 February 1971, the applicant's commander initiated action to bar his reenlistment.  The commander indicated he had counseled and advised the applicant of the adverse consequences which may ensue from this or similar personnel actions.  Additionally, the commander indicated the applicant's conduct and efficiency was rated as unsatisfactory.

6.  A certificate prepared by the applicant's battalion commander, dated 12 February 1971, shows he recommended that the applicant receive a general discharge and be barred from reenlistment.  The certificate also contained the following remarks:

* the applicant was arrested by civil authorities on 23 January 1971 for possession of marijuana
* failure of MOS test with a score of 40; report from section indicates inefficiency and undependability

7.  A DA Form 2627-2 (Record of Appellate or Other Supplementary Actions Under Article 15, Uniform Code of Military Justice), dated 5 April 1971, shows the applicant's suspended reduction to PFC was vacated.

8.  Item 30 (Remarks) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 21 May 1971 shows he had 54 days of lost time from 17 February 1971 to 25 March 1971 and from 4 May 1971 to 20 May 1971.

9.  This DD Form 214 also shows he was discharged under conditions other than honorable under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct).  He completed 3 years, 3 months, and 8 days of total active service.

10.  The applicant provides a self-authored statement and eight letters of support from his pastor, State representative, and friends all attesting to his conduct and character.

11.  There is no indication the applicant petitioned to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-206, in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section VI prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  A discharge under other than honorable conditions was normally considered appropriate for members separating under this provision of the regulation.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel.  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 request for an upgrade of his discharge under other than honorable conditions to a general discharge was carefully considered and determined to lack merit.

2.  Notwithstanding the supporting statements provided by the applicant and letters of support, post-service conduct alone is not a basis for upgrading a discharge.

3.  In the absence of evidence to the contrary, it is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is further presumed the applicant's discharge reflects his overall record of military service based on his narrative reason for separation.

4.  There is no evidence in the available record and the applicant did not provide any evidence which shows his discharge was in error or unjust.  Absent such evidence, there is no basis for granting the applicant's request.

5.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

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)                                         AR20110019052



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ABCMR Record of Proceedings (cont)                                         AR20110019052



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