BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130007362 


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 19 years of age at the time with a drinking problem and he did not know anything about addiction at the time
* he came in contact with Soldiers returning from Vietnam and others from inner cities, with drug problems
* he was sexually and physically abused as a child, which affected his personality
* it has now been 41 years since his discharge

3.  The applicant did not provide any 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 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 records show he was born on XX August 1951 and he was inducted into the Army of the United States and entered active duty at 19 years and 8 months of age on 20 April 1971.  He held military occupational specialty 94B (Food Service Specialist). 

3.  On 30 October 1971, he was arrested by civil authorities in Bell County, TX, while on authorized pass and charged with possession of heroin.  He was convicted by a civil court on 20 March 1972 and sentenced to 3 years of confinement. 

4.  On 20 November 1972, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of civilian confinement. 

5.  On 20 November 1972, the applicant acknowledged receipt of the separation memorandum and indicated he did not intend to appeal his conviction.  He was advised of the basis for the contemplated separation for civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by a board of officers and appearance before a board of officers, and elected to submit a statement on his own behalf.  In his statement, he acknowledged that what he did was wrong and asked for leniency.  He further acknowledged he understood that:

	a.  He could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him. 

	b.  As a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life.

6.  On 29 January 1973, his immediate commander initiated separation action against him under Army Regulation 635-206 for his civil conviction.  His intermediate and senior commanders recommended approval. 

7.  On 22 May 1973, a board of officers convened at Headquarters, 2nd Armored Division, Fort Hood, TX, to determine if the applicant should be discharged.  The board found the applicant undesirable for further retention in the military because of conviction by civil court.  The board recommended his immediate discharge by reason of misconduct (civil conviction) with the issuance of an Undesirable Discharge Certificate. 

8.  On 26 June 1973, the convening/separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 for misconduct by reason of civil conviction and directed he be furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  The applicant was accordingly discharged on 10 August 1973. 

9.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-206 with an under other than honorable conditions characterization of service.  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 5 months, and 16 days of creditable active service and he had 310 days of lost time.  

10.  On 14 July 1982, the Army Discharge Review Board (ADRB) reviewed his discharge and determined it was proper and equitable.  Accordingly, the ADRB denied his request for an upgrade of his discharge.

11.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of this regulation provided, in pertinent part, that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General.  Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

12.   Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the 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 evidence of record shows the applicant was convicted by a civil court of possession of heroin and he was sentenced to confinement.  Accordingly, his chain of command initiated separation action against him and he was accordingly notified.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

2.  The applicant was nearly 20 years of age at the time of his induction and over 20 years of age at the time of his offense.  However, there is no evidence in his record and he provides none that shows his misconduct was caused by his age or that he was less mature than other Soldiers of the same age who successfully completed their term of service. 

3.  The applicant's actions at the time clearly brought discredit upon himself and the Army.  The reason for his discharge and the characterization of service were both proper and equitable.  Further, the quality of his service did not meet the standards of acceptable conduct and performance expected of Army personnel.  Based on his record of misconduct his service was unsatisfactory.  Therefore, he is not entitled to a general or 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)                                         AR20130007362





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ABCMR Record of Proceedings (cont)                                         AR20130007362



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