BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120009352 


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 undesirable discharge (UD) to a general discharge (GD) under honorable conditions.

2.  The applicant states his use of drugs impaired his ability to serve.  He states his service record was exemplary prior to April 1969.  He was introduced to drugs which began his downward spiral.  He was never informed of drug treatment programs which might have been a benefit to him.  He states he was so close to finishing his enlistment, his discharge was unfair.  He states he was discharged while he was incarcerated in civilian custody without the benefit of legal counsel and without knowledge of his rights as a U.S. military serviceman.  He does not recall being made aware of or signing waivers to proceed or accept discharge.  He states he was not contacted by the military at any time prior to receipt of the notice of discharge.

3.  The applicant provides self-authored statements and a third-party statement in support of his request.

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 record shows he enlisted in the Regular Army on 9 January 1968.  He was trained in and awarded military occupational specialty 91B (Medical Specialist).  His record shows he served in Alaska for 23 months and was authorized award of the National Defense Service Medal (NDSM).  His record documents no acts of valor or significant achievement.

3.  The applicant's disciplinary history includes a special court-martial conviction on 26 February 1970 for disobeying a lawful order and being absent without leave (AWOL) and his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on four separate occasions between 28 August 1968 and June 1969 for a myriad of offenses that included disrespect, disorderly conduct, failure to obey general orders, and misconduct.  It also includes his accrual of 75 days of lost time during four separate periods of AWOL between 31 January 1970 and 7 September 1971.

4.  On 14 May 1971, the District Court, Fourth Judicial District, State of Colorado, found the applicant guilty of the sale of a narcotic drug and sentenced him to not less than 3 or more than 5 years of imprisonment in the State Penitentiary.

5.  On 17 June 1971, the applicant was advised he was being considered for discharge based on his civil court conviction.  He was informed of his rights in connection with the separation action and given 30 days to submit his election of rights.

6.  On 23 July 1971, the applicant's separation action was forwarded to the separation authority after the applicant failed to respond and/or submit his election of rights within the 30-day time frame allotted.

7.  On 25 August 1971, the separation authority approved the applicant's separation and directed that the applicant be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 7 September 1971, the applicant was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed a total of 2 years, 7 months, and 1 day of creditable active military service with 75 days of lost time due to AWOL.

8.  On 13 June 1980 after careful consideration of the applicant's military records and all other available evidence, the Army Discharge Review Board determined the applicant's discharge was proper and equitable and voted to deny his request for an upgrade of his discharge.

9.  The applicant provides a third-party statement in which the individual attested to the applicant's good character and requested the applicant be given relief from his past mistakes.

10.  Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), 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.  The separation authority could issue an honorable discharge (HD) or a GD if such were warranted based on the member's record of service.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the current Army policy for enlisted separations.

	a.  Paragraph 3-7a provides that an HD 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.

	b.  Paragraph 3-7b provides that a GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because was discharged while he was incarcerated in civilian custody without the benefit of legal counsel and without knowledge of his rights as a U.S. military serviceman has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable law and regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement.  However, it does reveal an extensive disciplinary history.  As a result, his UD accurately reflects the overall quality of his service and although his post-service conduct is noteworthy, it is not sufficiently mitigating to support granting the 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 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)                                         AR20120009352



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ABCMR Record of Proceedings (cont)                                         AR20120009352



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