IN THE CASE OF:	  

		BOARD DATE:	    29 October 2015

		DOCKET NUMBER:  AR20150004262 


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 undesirable discharge be upgraded to a general under honorable conditions discharge.

2.  He states he was arrested by civilian authorities while visiting the home of a female friend.  He maintains he had no knowledge of any criminal activities prior to his visit.  He adds he was coerced into entering a plea of guilty based on the advice of counsel and he was threatened that if he went through with a trial, he could be incarcerated for five years.  He states he was young and naïve and was not prepared to go to prison for an offense he did not commit.  He concludes that he understands that ignorance is no excuse, but he believes there has to be some justice for a matter occurring over 45 years ago. 

3.  He provides a self-authored statement and five supporting statements.

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 was inducted into the Army of the United States on 12 August 1968.  

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on:

* 21 August 1969 for failure to go at the time prescribed to his appointed place of duty on two separate occasions on 21 August 1969
* 1 December 1969 for failure to obey a direct order on 25 November 1969
* 23 January 1970 for failure to go to his appointed place of duty on
14 and 16 January 1970

4.  On 6 March 1970, he was convicted by a summary court-martial of failure to go at the time prescribed to his appointed place of duty on 2 March 1970.  He was sentenced to a forfeiture of $50.00 per month for one month and hard labor without confinement for seven days.

5.  On 17 July 1970, the applicant appeared for trial before the State of North Carolina for the charge of possession of heroin.  He was represented by his attorney and entered the plea of "Guilty."  The court examined the voluntary nature of his plea and found that his plea was voluntary.  He was sentenced to not less than three years nor more than five years of civil confinement in the North Carolina State Prison.

6.  On 26 August 1970, The Adjutant General of the Army notified military officials at Fort Bragg, North Carolina, through command channels that the applicant was confined by civil authorities. 

7.  The applicant's record is void of his discharge packet.  However, on 
23 September 1970, an Assistant Adjutant stated the applicant had been sentenced to three to five years on 17 July 1970 and a request for discharge under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion)) was forwarded to the brigade.

8.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-206 with a character of service listed as under other than honorable conditions.  He completed 1 year, 4 months, and 8 days of active duty service with 22 January to 20 February 1969 and 23 May to 23 October 1970 listed as lost time.

9.  On 3 October 1970, he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 6 November 1972, after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  The board denied his request for a discharge upgrade.

10.  The five supporting statements submitted by the applicant speak highly of his outstanding citizenship and his ability to overcome adversity.  His sister stated he has demonstrated that he has outgrown his immature and irresponsible behavior.  She offered that he stays to himself and away from trouble.  A friend said he has known the applicant for 20 years and the applicant has been a role model to him and others.  

11.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or had action taken against them which was tantamount to a finding of guilty for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 maintains he was arrested by civilian authorities while visiting a friend's home and he had no knowledge of any criminal activities.  He adds he was coerced into entering a plea of guilty based on the advice of counsel. 

2.  There is no evidence and he did not provide any to support his contention that he was coerced into pleading guilty.  The evidence of record shows he was represented by his attorney an entered a plea of "Guilty" for the charge of possession of heroin.  The court examined the voluntary nature of his plea and found that his plea was voluntary. 

3.  Although the applicant has provided numerous supporting statements attesting to his good citizenship and his outstanding qualities, good post-service conduct alone is not a basis for upgrading a discharge.  Additionally, there are no provisions in the Army regulations for automatically upgrading a discharge after a period of time has elapsed.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade

4.  The evidence of record shows he was sentenced to not less than three years nor more than five years of civil confinement in the North Carolina State Prison.  Therefore, it appears he was properly and equitably discharged in accordance with the regulations in effect at the time. 

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)                                         AR20150004262





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ABCMR Record of Proceedings (cont)                                         AR20150004262



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