IN THE CASE OF:
BOARD DATE: 6 July 2012
DOCKET NUMBER: AR20120000125
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 discharge be upgraded to honorable.
2. The applicant states the circumstances surrounding his discharge were unjust. He was quite sheltered and naive. He did not know that what he was invited to help with was illegal. It ended with his conviction by court-martial for drug possession. Since his discharge he has volunteered to work with youth on saying no to drugs and staying in school, coaching Pee Wee football, and youth summer volunteer work. He believes he has paid his debt.
3. The applicant provides copies of a personal statement, his DD Form 214 (Report of Separation from Active Duty), a police report, seven letters of support, two medical statements, and two certificates for outstanding performance.
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 applicants 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 applicants 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 17 August 1977, completed training, and was awarded military occupational specialty 91B (Medical Specialist).
3. On 5 September 1977, in accordance with his plea, a special court-martial found the applicant guilty of being absent without leave (AWOL) for 9 days.
4. The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 16 December 1977 for illegal drug possession, marijuana.
5. On 6 July 1978, a general court-martial (GCM) found the applicant guilty of possession and sale of heroin and of possession of marijuana. His sentence was reduction to E-1, forfeiture of all pay and allowances, confinement for one year, and a bad conduct discharge.
6. The findings and sentence were approved by the court-martial convening authority and affirmed by the Court of Military Appeal. Article 71(c) of the Uniform Code of Military Justice having been complied with, the BCD was ordered executed and the applicant was accordingly discharged.
7. The applicant was discharged on 9 April 1979. He had 10 months and 5 days of creditable service with 287 days of lost time (9 days AWOL and 278 days of confinement). His DD Form 214 shows only his period of confinement.
8. The letters of support state the applicant is an extremely competent, caring, and able individual. He is hard working and often donates his time to assist others. He is a hard working individual who has great energy and willingness to help others.
9. The medical statements show that, since 2010, he has been treated for a number of cardiopulmonary conditions that significantly impact and restrict his physical activities.
10. A Miami-Dade Police Department records check found no local record for the applicant.
11. The statutory authority under which this Board was created (Title 10, U.S. Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.
12. Army Regulation 635-200 (Personnel Separations) states:
a. an honorable discharge is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldiers service has met the standards of acceptable conduct and performance of duty; and
b. a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. The record does not contain and the applicant has not provided any evidence to show that his discharge was unjust.
2. In addition to his period of AWOL and lost time due to confinement, he was twice found guilty of possession of marijuana and once for the possession and sale of a habit-forming narcotic (heroin).
3. His conduct is not outweighed by any significant period of creditable service or accomplishment while on active duty and is not be considered to have been honorable or under honorable conditions.
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) AR20120000125
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20120000125
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090005155
IN THE CASE OF: BOARD DATE: 25 AUGUST 2009 DOCKET NUMBER: AR20090005155 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). The findings issued by the Court of Military Appeals are not of record.
ARMY | BCMR | CY2011 | 20110000891
On 25 February 1982, a special court-martial convicted the applicant of wrongfully having in his possession 0.54 grams, more or less, of a habit-forming narcotic drug, heroin. Special Court-Martial Order Number 277, dated 6 November 1982, shows the sentence was affirmed. He was also convicted by a special court-martial of possessing heroin.
ARMY | BCMR | CY2008 | 20080000203
On 18 July 1978, the separation authority approved the applicants request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. The applicant's contention that he fell into a state of depression is not supported by any evidence of record.
ARMY | BCMR | CY2013 | 20130019319
On 6 August 1970, the applicant's company commander recommended the applicant be discharged under the provisions of Army Regulation 635-206 for a civil conviction with an undesirable discharge. The regulation stated in: a. Paragraph 3-7a - an honorable discharge was a separation with honor. The applicant's record shows he was discharged in accordance with Army Regulation 635-206 for misconduct-conviction by civil authorities.
ARMY | BCMR | CY2008 | 20080019444
The applicant served in Vietnam from on or about 14 July 1969 to 2 January 1971. 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.
ARMY | BCMR | CY2008 | 20080012469
On 20 December 1979, the Staff Judge Advocate (SJA), in a written review for the convening authority, summarized the evidence and trial discussion. General Court-Martial Order Number 289, Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, dated 16 May 1980, noted the sentence to a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 1 year, and reduction to pay grade E-1, adjudged on 10 October 1979, as promulgated in General...
ARMY | BCMR | CY2011 | 20110019809
The applicant requests upgrade of his bad conduct discharge (BCD) to an honorable discharge. The applicant enlisted in the Regular Army on 21 October 1968 and he was honorably discharged on 18 May 1970 for immediate reenlistment. His service record does not indicate he applied to the Army Discharge Review Board (ADRB) to upgrade his discharge under the provisions of the Department of Defense (DOD) Special Discharge Review Board (SDRP).
ARMY | BCMR | CY2002 | 2002072184C070403
The applicant requests correction of military records as stated in the application to the Board and as restated herein. On 17 November 1981, his commander notified him that he was considering whether he should impose NJP against the applicant for being disrespectful towards a noncommissioned officer. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction.
CG | BCMR | Alcohol and Drug Cases | 2003-144
The order indicates that on February 23, 1968, a state court placed the applicant on probation for three years after he was convicted of possessing marijuana. In 1977, the applicant applied to a Special Discharge Review Board for an VIEWS OF THE COAST GUARD On February 25, 2004, the Judge Advocate General of the Coast Guard submitted an advisory opinion recommending that the Board waive the statute of limitations and grant partial relief in this case by upgrading the applicant’s discharge...
ARMY | BCMR | CY2009 | 20090007199
Application for correction of military records (with supporting documents provided, if any). In accordance with Title 10, U. S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction. _______ _ _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.