RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 November 2006
      DOCKET NUMBER:  AR20060006777


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Ms. Susan Powers                  |     |Member               |
|     |Mr. Dennis Phillips               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his general discharge be upgraded to
honorable.

2.  The applicant states, in effect, that there is no proof of him having a
blood alcohol content of over .05 percent for which he received nonjudicial
punishment and was subsequently discharged.  He claims he was told the
results of the blood test were inconclusive and did not support the Article
15 action and that the blood test was not returned in a reasonable amount
of time (from 2 December 1988 to 14 March 1989).

3.  The applicant states, in effect, that the offense for violation of
Article 92 (failure to obey order or regulation) is questionable.  He
contends that on the morning in question, prior to consuming alcohol, he
had no idea an alert was going to be called on 2 December 1988 or that he
would have to perform duties.  He claims that punishment under Article 92
is only authorized if the Soldier knew or reasonably should have known
prior to consuming alcohol that he/she had duties to perform.  Therefore,
his Article 15 action was inappropriately filed and unproven and should
have been dismissed in the first place.  He also points out that he was
discharged for commission of a serious offense and this is questionable.
He states that he violated no law or custom of the military and that his
reason for discharge is a malicious slander which was perpetuated by a
command sergeant major.

4.  The applicant further states that since his discharge he has been
denied employment by a number of employers based upon this false,
slanderous discharge.  His relationship with his family has been ruined and
the Department of Veterans Affairs (DVA) has often treated him reluctantly,
failed to treat his dental injury, and refused to recognize his treatments
while in the military for depression.

5.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty); a DA Form 2627 (Record of
Proceedings Under Article 15, UCMJ), dated 23 March 1989; and copies of his
discharge packet.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The Disabled American Veterans, as counsel for the applicant, requests
the applicant’s general discharge be upgraded to honorable.

2.  Counsel states, in effect, that a change is warranted based on
consideration of the applicant’s military record and other evidence viewed.
 He reiterates the applicant’s contention that his current discharge is
improper and relates several improprieties in the use and interpretation of
Army regulations used during his nonjudicial punishment.

3.  Counsel provides a statement, dated 11 October 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 June 1989.  The application submitted in this case is dated 1
May 2006.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted on 1 September 1983.  He trained as a petroleum
supply specialist and attained the rank of sergeant on 22 April 1986.

4.  On 14 March 1988, a bar to reenlistment was imposed against the
applicant based on two military police reports (damaging Government
property, drunk and disorderly; and assault).

5.  On 23 March 1989, nonjudicial punishment was imposed against the
applicant for violating a lawful general regulation (having a blood alcohol
level of .05 percent or above) on 2 December 1988.  His punishment
consisted of a reduction to E-3 and extra duty.

6.  On 25 March 1989, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-
12c, for misconduct (commission of a serious offense).  The unit commander
cited that since the applicant’s arrival at the unit he had received one
field grade Article 15, that a bar to reenlistment had been imposed on 14
March 1988, that at a second review it was recommended that the bar to
reenlistment remain in effect, that actions such as those were not
compatible with continued military service, and that he was determined to
be unfit for further military service.  He recommended that the applicant
receive a general discharge.

7.  On 27 March 1989, the applicant responded to the discharge proceedings
and elected to provide statements on his own behalf.  He acknowledged that
he might encounter substantial prejudice in civilian life if a general
discharge were issued and he elected to submit a statement on his own
behalf, dated 1 May 1989.  In summary, he stated that he desired to remain
on active duty and that although he admitted to the offense which occurred
on 2 December 1988 he did not believe it should serve as a basis to
terminate his military career.  He readily admitted to having an alcohol
problem, that he had repeatedly sought assistance for his alcoholism, and
that he was attending Alcoholics Anonymous.  He addressed his marital
problems and requested that he be allowed to complete his current term of
enlistment.

8.  On 15 May 1989, the separation authority approved the recommendation
for discharge and directed the issuance of a general discharge.

9.  Accordingly, the applicant was discharged on 6 June 1989 with a general
discharge under the provisions of Army Regulation 635-200, chapter 14,
paragraph 14-12c, for misconduct (commission of a serious offense).  He had
served 5 years, 9 months, and 6 days of total active service.

10.  On 30 June 1993, the Army Discharge Review Board (ADRB) denied the
applicant’s request for an honorable discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel from active duty.  Chapter 14, in effect
at the time, established policy and prescribes procedures for separating
members for misconduct.  The regulation states, in pertinent part, that a
Soldier is subject to discharge for commission of a serious military or
civil offense, if the specific circumstances of the offense warrant
separation and a punitive discharge would be authorized for the same or
closely related offense under the Manual for Courts-Martial.  The issuance
of a discharge under other than honorable conditions is normally considered
appropriate.  However, the separation authority may direct a general
discharge if such is merited by the member's overall record.

12.  The Manual for Courts-Martial states, in pertinent part, that the
maximum authorized punishment for a violation of Article 92 is a
dishonorable discharge or bad conduct discharge and two years of
confinement.

13.  Army Regulation 635-200, 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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.
14.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that there is no proof of him having a
blood alcohol content of over .05 percent for which he received nonjudicial
punishment, evidence of record shows he admitted to the offense which
occurred on
2 December 1988 in his 1 May 1989 statement to the discharge authority.

2.  The applicant’s contentions pertaining to the imposition of the Article
15 relate to evidentiary and procedural matters that could have been
addressed and conclusively adjudicated in a court-martial.  However, the
applicant accepted nonjudicial punishment for this offense, rather than
demand trial by court-martial.
3.  Although the applicant contends that his discharge for commission of a
serious offense is questionable and that he violated no law or custom of
the military, the Manual for Courts-Martial states that a punitive
discharge (dishonorable discharge or a bad conduct discharge) is the
maximum authorized punishment for violating a lawful general regulation
(Article 92).  Therefore, he met the regulatory guidelines for separation
for commission of a serious offense.

4.  A discharge is not upgraded for the sole purpose of obtaining
employment opportunities.

5.  A discharge is not upgraded for the sole purpose of obtaining DVA
benefits.

6.  The applicant’s record of service included a bar to reenlistment for
alcohol related incidents and one nonjudicial punishment.  As a result, his
record of service did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, the applicant's record
of service is insufficiently meritorious to warrant an honorable discharge.

7.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

8.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

9.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 30 June 1993.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to
this Board expired on 29 June 1996.  The applicant did not file within the
3-year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JM____  __SP_____  _DP____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.


                                  _____John Meixell_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006777                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061128                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19890606                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 14                   |
|DISCHARGE REASON        |Misconduct (commission of a serious     |
|                        |offense)                                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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