IN THE CASE OF:	 

		BOARD DATE:	  19 September 2013
	
		DOCKET NUMBER:  AR20130003171


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 under other than honorable conditions discharge.

2.  The applicant states he was drunk when he was arrested and should have been given a second chance.  He states he was an alcoholic at the time, but he still loved his country and would have served further if he had been given a chance.  He concludes by stating he was never given the opportunity to go through any type of rehabilitation program or counseling.

3.  The applicant provides no additional evidence 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.  On 8 July 1973, the applicant enlisted in the Indiana Army National Guard (INARNG).  On 11 October 1973, he entered active duty for the purpose of completing his initial entry training.

3.  On 25 February 1974, he completed his initial entry training, was awarded military occupational specialty (MOS) 62E (Crawler Tractor Operator), and was released to the control of the INARNG.

4.  Letter Orders Number E-11-52, issued by Headquarters, Fifth United States Army, Fort Sam Houston, TX, on 10 November 1975, involuntarily ordered him to active duty for a period of 19 months, effective 8 January 1976.

5.  On 8 January 1976, his location was unknown.  Consequently, his unit of assignment reported him as absent without leave (AWOL).  

6.  On 21 January 1976, he was apprehended by civil authorities in Winfield, KS, and charged with the possession of a controlled substance.  He was extradited to Bartholomew County, Columbus, IN.  On this same date, he was reassigned to the Special Processing Company, U.S. Army Personnel Control Facility, U.S. Army Armor Center, at Fort Knox, KY.  

7.  On 6 February 1976, the applicant was arraigned at the Bartholomew County Circuit Court, Columbus, IN, where he pled guilty to the charge of delivering a controlled substance.  On 13 February 1976, he was sentenced to 6 months confinement at the Indiana State Farm, Greencastle, IN.

8.  On 29 April 1976, the applicant was notified that he was being considered for elimination from the Army under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), based on his conviction by a civil court.  

9.  On 11 May 1976, the applicant acknowledged receipt of the notification memorandum, requested counsel, and requested consideration of his case before a board of officers.  He requested consideration of his case by a board of officers and to be represented by his appointed counsel.  He stated his intent not to appeal his civil conviction.  In his statement in his own behalf, he stated:

* he was locked up since August 1975, and this is the reason he was not able to report on 8 January 1976
* he was convicted by a civilian court of a misdemeanor charge
* he was very interested in remaining in the service	

10.  On 18 May 1976, his immediate commander recommended his elimination from the Army under the provisions of Army Regulation 635-206, based on his conviction by a civil court.

11.  On 27 May 1976, the applicant was notified that he was to appear before a hearing to consider his elimination from the service under the provisions of Army Regulation 635-206.

12.  On 30 June 1976, he was released from the Indiana State Farm at Greencastle, IN, and returned to military control.  On 1 July 1976, he joined the Special Processing Company at Fort Knox, KY.  On this same date, he acknowledged receipt of the hearing notification memorandum issued on 27 May 1976.

13.  On 20 July 1976, a board of officers convened, pursuant to orders at Fort Knox, KY, to consider the applicant's elimination from the Army.  The applicant appeared and was represented by counsel.  The board found the applicant undesirable for further retention in the Army because of his conviction by a civil court and recommended he be issued an Undesirable Discharge Certificate.

14.  On 13 August 1976, the separation authority approved the board's findings and recommendation.  He ordered the applicant reduced to the rank/grade of private/E-1, discharged from the Army under the provisions of Army Regulation 635-206, and issued an Undesirable Discharge Certificate.

15.  On 20 August 1976, he was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he received an under other than honorable discharge. 

16.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

18.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) provides the basic policies and procedures for the separation of enlisted personnel.  

   a. Paragraph 3-7a provides that an honorable discharge 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 was convicted by a civilian court of possessing a controlled substance and was sentenced to confinement.  As required by the applicable regulation at the time, his chain of command initiated separation action against him and he was notified of his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge appears to be appropriate based on the quality of his service.  

2.  His actions at the time clearly brought discredit upon himself and the Army.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is entitled to neither an under honorable conditions (general) discharge nor an honorable discharge.

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)                                         AR20110024663



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ABCMR Record of Proceedings (cont)                                         AR20130003171



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