IN THE CASE OF:	  

		BOARD DATE:	  5 February 2013

		DOCKET NUMBER:  AR20120012657 


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, in effect, an upgrade of his undesirable discharge (UD) to a general discharge.  

2.  He further requests a personal appearance before the Army Board for Correction of Military Records (ABCMR) to provide additional testimony as evidence.

3.  He states:

   a.  The type of discharge was too harsh for the offense committed.  He went to Vietnam in March 1968 and his military occupational specialty (MOS) was as a radio operator.  He was well liked and took his responsibilities seriously.  They were located in Phu Cat and his duties took him into the field.  He experienced small arms fire and occasionally incoming fire.  He now admits that these experiences made him quite nervous and this is when he first tried marijuana.  The effect was good and he was able to function well passing appropriate information to the artillery guns for target and to protect other troops in the vicinity.

   b.  In October 1968, he was transferred to Company C, 713th Artillery.  One of his responsibilities was to pull guard duties.  This was done frequently.  One night in December 1968, he was sleeping during his rest period unaware that the other guard had fallen asleep during his watch.  Both of them were issued Article 15s.  
   
   c.  In March 1969, he was given orders to report to Fort Sill, OK.  His relationships at home were stressed and he couldn’t focus or settle down, always feeling nervous and paranoid.  He found the use of marijuana more settling than work or anything else he was doing.  In June 1969, he was arrested for possession of marijuana.  He was offered court appointed counsel and then legal counsel from the military which he declined due to his agreement with a private lawyer.  His counsel told him that he would receive one year or settle for six months by pleading guilty, which he did.  He ended up serving seven and a half months in addition to the four months previously served.

   d.  A discussion with his company commander ensued upon his release from jail and at this time he inquired about a discharge.  The company commander stated he could arrange a discharge and never indicated the degree or type.  He assumed it would be a general discharge.  Until recently, he thought he had been issued a general discharge.  He was handed his military packet and told to pack his belongings and go home.  He contends his UD was too harsh for the infraction and should be upgraded to a general discharge.

4.  He provides:

* DD Form 4 (Enlistment Record – Armed Forces of the United States), front page
* DA Form 20 (Enlisted Qualification Record)
* DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)), page 1
* Letter of Commendation
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel defers statements and requests to the applicant and provides no additional evidence.

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 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 record shows he enlisted in the Regular Army, in pay grade E-1, on 10 April 1967, for 3 years.  He completed training and was awarded MOS 13A (Field Artillery).  He was promoted to pay grade E-4 on 16 October 1968.  

3.  He served in Vietnam from 5 March 1968 through 3 March 1969.  

4.  On 12 December 1968, he accepted nonjudicial punishment under Article 15, UCMJ, for being found asleep while posted as a sentinel on the observation post on 5 December 1968.  His punishment included reduction to pay grade E-2.

5.  On 16 January 1969, he received a Letter of Commendation, that commended him for his demonstration of a high degree of professional pride, enthusiasm, and devotion to duty as a member of Battery G, 7th Battalion, 13th Artillery.

6.  He was again promoted to pay grade E-3, on 2 March 1969.

7.  An Arrest Record - Lawton Police Department, OK, dated 5 June 1969, shows he was charged with possession of marijuana.

8.  A DA Form 2800 (CID Report of Investigation), dated 13 July 1969, shows a civil charge of wrongful possession of marijuana was dismissed against him and he was subsequently released to military authorities.

9.  A DA Form 19-32 (Military Police Report), dated 14 October 1969, shows the possession charge was amended to a use of marijuana charge, he pled guilty, and he was sentenced to 6 months in the county jail effective 16 October 1969.  He was detained and began serving his sentence.

10.  On 18 November 1969, the applicant’s company commander advised the applicant of the proposed action to discharge him from the Army under the provisions of Army Regulation 635-206 (Misconduct, Fraudulent Entry, Conviction by Civil Court, Absent Without Leave, Desertion), based on his civil conviction.  He was advised of his rights.

11.  A DA Form 19-32, dated 18 January 1970, shows he was released from the county jail after serving seven and one half months and returned to military authorities.
12.  On 23 January 1970, he acknowledged the proposed action to separate him under the provisions of Army Regulation 635-206.  He waived his rights and elected not to submit a statement in his own behalf.  He also acknowledged that as a result of the issuance of a discharge under conditions other than honorable he could be ineligible for many or all benefits as a veteran.

13.  On 5 January 1970, the applicant’s company commander recommended the applicant appear before a board of officers under the provisions of Army Regulation 635-206 to determine whether he should be discharged.  The company commander stated the discharge was recommended because of a conviction by civil court for an offense for which the maximum penalty under the UCMJ was confinement in excess of one year.  The company commander also stated that the applicant had been advised of the proposed action by registered letter dated 18 November 1969.

14.  On 21 January 1970, he waived his appeal of his 16 October 1969 conviction.

15.  On 29 January 1970, the applicant’s battalion and brigade commanders recommended approval of the applicant’s discharge.

16.  On 6 March 1970, after consulting with counsel, he acknowledged the proposed action to separate him under the provisions of Army Regulation 635-206.  He waived his rights and elected not to submit a statement in his own behalf.  He also acknowledged he could be issued a UD and the results of such an issuance.

17.  On 24 March 1970, the appropriate separation authority approved the applicant’s discharge and directed the issuance of a UD Certificate and reduction to pay grade E-1.

18.  On 27 March 1970, he was discharged under the provisions of Army Regulation 635-206, with a UD, in pay grade E-1.  He was credited with completing 2 years, 4 months, and 1 day of net active service and he had
227 days of lost time. 

19.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

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

21.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-7b states 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.  

22.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  On 5 June 1969, he was apprehended by civil authorities and charged with possession of marijuana.  The possession charge was amended to the charge of using marijuana, he pled guilty, and he was sentenced to six months in jail.

2.  On 18 November 1969, the applicant’s company commander notified the applicant of the proposed separation action under the provisions of Army Regulation 635-206, based on his civil conviction.  

3.  After consulting with counsel, he acknowledged the proposed action to separation, waived his rights and elected not to submit a statement in his own behalf.  He acknowledged he could be issued a UD.  

4.  He was discharged accordingly on 27 March 1970.  

5.  There is no evidence of record and neither he nor counsel provided any evidence to show he was unjustly discharged.  They also have not provided evidence sufficient to mitigate the character of the applicant's discharge.

6.  With respect to the personal hearing, his request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

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)                                         AR20120012657



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ABCMR Record of Proceedings (cont)                                         AR20120012657



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