IN THE CASE OF: BOARD DATE: 31 August 2010 DOCKET NUMBER: AR20100000289 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 discharge under other than honorable conditions be upgraded to a general discharge. 2. The applicant states: * Unfortunately, he got caught up in the civilian court system in Killeen, TX * He and a friend were arrested for giving undercover police a gram of hash * His friend offered to get high with the police and the next thing he knew, they both were in jail * This happened over 30 years ago * He remembers how crooked the law enforcement was in Texas, as they preyed on service members for monetary gain * He was told when he was in-processing to stay on post or he would end up in jail * He paid off the court system in order to get out of jail * He was told by a United States Marshal there was no record of his case in Killeen, TX * He has no physical evidence to collaborate his story * He tried very hard to serve his country with honor * He would like his discharge upgraded so he can utilize his medical benefits 3. The applicant provides of the following documents: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Warning Against Reentering the Military Reservation dated 3 January 1983 * Enlistment/Reenlistment Document – Armed Forces of the United States * DA Form 1695 (Oath of Extension of Enlistment) * One page of a Report of Promotion Board Proceedings for Promotion to Grades E-5 and E-6 * Certificate of Completion of the Primary Leadership Course * A diploma showing he is an OH-58 Helicopter Repair Course graduate * A DA Form 3355 (Promotion Point Worksheet) 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 11 June 1979, the applicant enlisted in the Regular Army, for 3 years, in the pay grade of E-1. He completed his training as an observation/scout helicopter repairer. 3. On 4 April 1980, the applicant was arrested for public intoxication. He was released with a plea of "Nolo" and he waived his court rights. He was bonded by a military bail bond service and he allowed them to pay a fine for him of $40.00. 4. The applicant extended his enlistment for 8 months on 23 September 1981 and he was promoted through the ranks to the pay grade of E-4. 5. On 14 February 1982, the applicant was arrested again for public intoxication. The available records do not show the outcome of this arrest. 6. On 10 May 1982, the applicant was notified that he was being barred from reenlistment and his commander cited the following as a basis for the bar: * Delivery of a controlled substance, 23 April 1982 (Hash) * Public Intoxication, 14 February 1982 * Public Intoxication, 4 April 1982 * Public Intoxication, 4 April 1980 * "DA Form's 2 and 2-1" (Personnel Qualification Record) 7. The applicant acknowledged receipt of the notification and he elected to submit a statement in his own behalf, in which he stated: * He had no intentions of ending up in all the trouble he managed to get himself into * He did not believe he did anything so serious as to deserve a bar to reenlistment * He was on a military post and the civilian law enforcement agencies would arrest a Soldier for any minor offense * He was arrested without the benefit of a test to determine his blood alcohol content * When he was court-martialed, he was acquitted (not part of the available record) * The concealed weapon charge he received happened when he was a civilian * The bar to reenlistment was premature as no one knew the outcome of the delivery of a controlled substance charge * He paid ungodly sums of money for what he believes were nothing but unfortunate incidents * He lost his security clearance as a result of his arrest * He never claimed he was an angel * He would be an asset to the unit in any combat situation 8. The bar to reenlistment was approved on 21 May 1982. 9. Nonjudicial punishment (NJP) was imposed against the applicant on 7 July 1982 for wrongfully appropriating 128 rounds of 7.62 millimeters live rounds of a value of about $24.32, the property of the United States Government. His punishment consisted of: * Reduction in pay grade * Forfeiture of pay * Extra duty 10. On 29 July 1982, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14. The commander cited the applicant's civil conviction due to the delivery of a controlled substance as the basis for the recommendation. He acknowledged receipt of the notification and he waived his rights electing not to consult with counsel or to submit a statement in his own behalf. 11. The appropriate authority approved the recommendation for discharge on 12 October 1982 and he directed the issuance of a discharge under other than honorable conditions. 12. Accordingly, on 3 January 1983, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 14, for misconduct, due to conviction by a civil court. He had completed 3 years, 6 months, and 23 days of net active service this period. 13. The available evidence does not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 14. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 15. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions have been considered and they are not substantiated by the available evidence. 2. The available evidence shows NJP was imposed against him for wrongfully appropriating 128 rounds of 7.62 millimeters live rounds, and he was arrested at least twice for public intoxication. He was also arrested and convicted of delivery of a controlled substance and he was barred from reenlistment as a result of his acts of misconduct. 3. Although it has been almost 30 years since he was discharged considering the nature of his offenses and his numerous acts of indiscipline, the type of discharge he was issued appropriately reflects his overall record of service. 4. The applicant has not shown error or injustice in the type of discharge he was issued. 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) AR20100000289 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100000289 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1