IN THE CASE OF:	  

		BOARD DATE:	  25 April 2013

		DOCKET NUMBER:  AR20120014938 


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 general discharge (GD) to an honorable discharge (HD).

2.  The applicant states he just wants an HD.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 29 September 1971.  He was trained in military occupational specialty 94B (Cook).
3.  On 21 June 1973, pursuant to his guilty plea, the U.S. District Court for the Western District of Texas-San Antonio Division convicted the applicant of the intentional and unlawful distribution of approximately .04 grams of heroin on 3 November 1972.  He was committed to the custody of the Attorney General or his authorized representative for treatment and supervision for a period of 
10 years or until discharged by the Federal Youth Correction Division of the Board of Parole.

4.  On 17 August 1973, the applicant was notified that action was being taken to eliminate him from the Army under the provisions of Section VI, Army Regulation 635-206, due to his conviction by civil authorities.  Having been advised of the basis for the contemplated separation, its effects, and the rights available to him, he made the following elections:

* requested consideration of his case by a board of officers
* requested representation by counsel
* to make a statement in his own behalf 
* not to appeal his civilian conviction

5.  On 24 September 1973, the unit commander recommended the applicant's discharge under the provisions of Army Regulation 635-206 by reason of civil conviction.

6.  On 17 December 1973, having carefully considered the evidence before it, the board of officers determined the applicant was undesirable for further retention in the military.  The board of officers recommended the applicant be discharged from the service based on his civil action with the issuance of a GD.

7.  On 10 January 1974, the separation authority approved the board's recommendation to discharge the applicant from military service and directed the issuance of a DD Form 257A (General Discharge Certificate).  

8.  On 15 January 1974, the applicant was discharged from active duty under the provisions of Section VI, Army Regulation 635-206.  The DD Form 214 confirms he completed 1 year, 5 months, and 26 days of creditable active service and he received a GD.

9.  On 17 May 1982, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.


10.  Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion), 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 III of that regulation 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 UD was normally considered appropriate for members separated under this provision of the regulation.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) governs the policies and procedures for the separation of enlisted personnel.  

	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 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his GD should be upgraded to an HD.

2.  The evidence of record confirms the applicant pled guilty, was found guilty, and was sentenced to 10 years in civilian confinement for the distribution of heroin. 

3.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Although a UD was normally assigned to members discharged under Section VI, Army Regulation 635-206, the separation authority exercised leniency when he authorized the applicant's receipt of a GD.

4.  Finally, the applicant's discharge accurately reflects his overall record of service based on the charges he was convicted of and does not support an upgrade of his discharge.  Accordingly, there is no basis to grant the requested relief 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)                                         AR20120014938



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ABCMR Record of Proceedings (cont)                                         AR20120014938



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