IN THE CASE OF:  	  

		BOARD DATE:  14 May 2015	  

		DOCKET NUMBER:  AR20140015902 


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 his under other than honorable conditions discharge be upgraded to an honorable or general discharge. 

2.  The applicant states, in effect, that he was busted for drugs in Italy and sentenced to 2 1/2 years in an Italian prison.  He served 15 months of the sentence and was released.  He was wrongly sentenced, since he had no drugs and they wanted to make an example out of him.

 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.  The applicant enlisted in the Regular Army on 14 January 1975.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was private/E-2. 

3.  He served his first duty assignment in Italy arriving on 29 May 1975.

4.  A DA Form 4187, dated 9 February 1976, shows his duty status changed from present for duty to civilian confinement effective 8 February 1976.

5.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

   a.  Item 21 (Time Lost), 760208 thru 760704 – 147 days – Civil Conf, and 760705 thru 770407 – 151 days – Civil Conf, with a total of 298 days.

   b.  Item 27 (Remarks), O/A 760706 SM was tried by the Italian Civil Court in Vicenza. SM was tried and found guilty of the following offenses: Use and sale (trafficking of) Hashish / Heroin was sentenced to 2 1/2 years in confinement) and a fine of 2,500,000 Lire.

6.  His record contains a 3-page document titled "The Tribunal," in which it declares he was guilty of the offenses punishable by Articles 81 of the Italian Penal Code, last paragraph of Article 71, and first and second paragraphs of Article 72, Law Number 685 of December 1975, and taking in consideration the extenuating circumstances, which were equal with the circumstances in aggravation sentences each to confinement for two years and six months, and a fine of lire 2,500,000.  This document was translated and certified, date unknown, by an Army Judge Advocate General Corps officer.

7.  He was notified by his legal counsel on 15 August 1976 of the initiation of separation actions under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct), for conviction by a civil court. 

8.  He was advised of the basis for contemplated separation action on 19 August 1976, the possible effects of discharge, and the rights available to him.  He also requested consideration of his case by a board of officers, requested to appear before the board, elected to make statements in his own behalf and requested representation by military counsel.

9.  His immediate and intermediate commanders recommended his discharge on or about 20 July 1976, in light of the nature of the offenses and his substandard performance of duty.  They recommended an undesirable discharge under the provisions of Army Regulation 635-206, section VI.
10.  He willingly withdrew his previous election of rights on or about 17 March 1977, and elected to waive his case before a board of officers, waive appearing before the board, and waive representation by military counsel, however, he still elected to make statements in his own behalf.   There is no evidence in the file of these statements.

11.  The separation authority approved his discharge on 1 April 1977, under the provisions of Army Regulation 635-206, section VI, and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions.  The discharge would not be executed until he was returned to U.S. military control. 

12.  He was discharged accordingly on 28 April 1977.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he was separated under the provisions of Army Regulation 635-206, section VI, by reason of misconduct-conviction by civil court.  He completed a total of 1 year, 1 month, and 15 days of total active service, with a total of 298 days of lost time from 8 February 1976 thru 7 April 1977.

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

14.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  Paragraph    33 of the regulation provided that members would be considered for discharge when it was determined that one or more of the following applied:  (a) when the Soldier was initially convicted by civil authorities, or action taken against the Soldier which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year; (b) when initially convicted by civil authorities of an offense which involved moral turpitude, regardless of the sentence received or maximum punishment permissible under any code; or (c) when initially adjudged a juvenile offender for an offense involving moral turpitude.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority 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's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  His record shows was charged and convicted by an Italian civil court for the use and sale (trafficking of) hashish/heroin and he was sentenced to 2 1/2 years in confinement and a fine of 2,500,000 Lire.

3.  Accordingly, his command initiated separation actions against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general 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 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)                                         AR20110000589



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ABCMR Record of Proceedings (cont)                                         AR20140015902



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