IN THE CASE OF:	  

		BOARD DATE:  10 July 2012

		DOCKET NUMBER:  AR20120000505 


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 his undesirable discharge (UD) be upgraded to an honorable discharge.

2.  The applicant states:

   a.  He is requesting his discharge be upgraded based on reference letters from law enforcement officers, family members, his pastor, and a Member of Congress.  Before his unfortunate situation he had an impeccable record to include multiple deployments to Vietnam and earning a Purple Heart and the Republic of Vietnam Gallantry Cross with Palm Unit Citation.
   
   b.  He has always tried to live a life where he could be an example for everyone he knows.  He was a good Soldier when he was in the Army.  When he was asked to help the Criminal Investigation Division (CID) investigate a drug ring he was willing to help.  The support he received from the CID was only to find more people using and selling drugs.  He is not saying he didn't do any wrong, but he was caught up in a situation that he had no control of.  He has grown and has become a good citizen.  

3.  The applicant provides:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 9 July 1970 and 29 June 1971

* DD Form 214 (Report of Separation from Active Duty) for the period ending 8 June 1976
* six character reference letters

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 military records show he enlisted in the Regular Army (RA), in pay grade E-1, on 14 August 1967, for 3 years.  He completed training and was awarded military occupational specialty 71L (Administrative Specialist).  

3.  He was honorably discharged on 9 July 1970 for the purpose of immediate reenlistment.  He reenlisted in the RA on 10 July 1970 for 6 years.  He was again honorably discharged on 29 July 1971 for the purpose of immediate reenlistment. He reenlisted on 30 July 1971.  

4.  He served in Vietnam from 24 September 1971 through 15 March 1972.  On 8 March 1972, he was awarded the Purple Heart for wounds received in action on 3 March 1972.  He served in Okinawa from 16 March 1972 through 15 September 1974.

5.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 1 October 1973, shows he was apprehended by Japanese civil authorities for smuggling, possessing, and transferring heroin on 1 October 1973.  He was convicted on 5 March 1974 and sentenced to 4 years of forced labor.  

6.  On 13 December 1973, he was convicted by a special court-martial of one specification of forgery on 28 April 1971.

7.  On 9 March 1974, the applicant’s company commander initiated action to discharge the applicant under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion), due to a civil conviction for possession of narcotics.  

8.  On 12 March 1974, after consulting with counsel, the applicant acknowledged receipt of the purposed discharge action and elected to appear before a board of officers.  On 5 April 1974, a board of officers recommended he be discharged with a UD.  

9.  On 6 June 1974, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-206 and directed the issuance of a UD Certificate, upon his release from civil confinement and return to the United States.  

10.  His records contain a DD Form 214 which shows he was discharged in pay grade E-1 on 8 June 1976 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions and he was issued a UD Certificate.  He was credited with completing 6 years, 4 months, and 7 days of total active service and had 723 days of time lost.

11.  On 7 March 1984, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  He provided six character reference letters wherein the individuals stated their support of his request for an upgrade of his discharge.  The individuals also attested to the applicant being a great son and brother and upstanding citizen.

13.  Army Regulation 635-206, in effect at the time, provided that an enlisted member, who was convicted by a civilian court of an offense for which the authorized punishment under the Uniform Code of Military Justice included confinement of 1 year or more, was to be considered for elimination.  When such separation was warranted a UD was considered appropriate.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  A UD would normally be furnished an individual who was discharged for the good of the Service.

15.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

16.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  In March 1975, he was convicted of smuggling, possessing, and transferring heroin by a civil court.  On 6 June 1974, the separation authority approved his discharge for civil conviction and directed the issuance of a UD Certificate.  

2.  His record contains a DD Form 214 that shows he was discharged on 8 June 1976 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by a court-martial.  Considering his discharge under the provisions of Army Regulation 635-206 was approved on 6 June 1974 and he was discharged on    8 June 1974, it appears unlikely his discharge for civil conviction was cancelled and a discharge in lieu of trial by court-martial was initiated.  However, either discharge normally warranted an undesirable discharge.

3.  His contentions and submitted documents have been considered; however, they do not support a change to his UD.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  There is no evidence and he did not provide any evidence to show that he was denied due process or that his rights were violated or that he was assisting CID. 

4.  In view of the foregoing, there is no basis for granting his requested relief.

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)                                         AR20120000505





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120000505



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1