RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060012296 


	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. Gerard W. Schwartz

Acting Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Kenneth L. Wright 

Chairperson

Mr. Chester A. Damian

Member

Ms. Ernestine Fields

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, in effect, that his discharge characterized as under other than honorable conditions (UOTHC) be upgraded.

2.  The applicant states, in effect, that he had accumulated several company level Articles 15, under the Uniform Code of Military Justice (UCMJ), throughout his military career for various alcohol related offenses that he deeply regrets.  He is an alcoholic (that does not currently drink) and is a regular active member in alcoholics anonymous (AA).  He attends AA regularly five to six times a week and is very active in the program and in facilitating help to other alcoholics.

3.  He states that he was young and naïve to his problem at the time and is very sorry for his actions during those times.  He is writing in hopes that the Board would consider upgrading his discharge, so that he may obtain a state or local government job, with pride and dignity, and so that he may better provide for his family.  He has been an honest productive tax paying citizen, with no legal problems, since his discharge and wishes to improve the quality of life for himself and his family.  He is enclosing a copy of his award for the Army Achievement Medal that he received prior to his discharge and hopes that it will be taken into consideration as well.  He knows that he was not the best Soldier in the Army, but he thinks he made some positive contributions to the Army as well as negative ones.  

4.  The applicant provides a copy of his award certificate awarding him the Army Achievement Medal in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 9 September 1982, the date of his discharge.  The application submitted in this case is dated 20 August 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's record shows he entered active duty on 10 September 1979.  The applicant successfully completed basic combat training and advanced individual training at Fort McClellan, Alabama.  On completion of his one station unit training (OSUT), he was awarded the military occupational specialty (MOS), 95B, Military Policeman.  He was advanced to pay grade E-3 effective 1 July 1980.  

4.  Between 28 March 1981 and 23 June 1982, he received nonjudicial punishment (NJP) on six occasions under Article 15, of the UCMJ, for assault, for being drunk and disorderly on two occasions, for unlawful entry, for failure to go to his appointed place of duty on two occasions, for failure to obey a lawful regulation, for failure to obey a lawful order on two occasions, for breach of peace, and for breaking restriction.  His punishments consisted of a reduction to pay grade E-2 and E-1, forfeitures of pay, and restriction and extra duties. 

5.  At a summary court-martial on 8 July 1982, the applicant entered mixed pleas to two offenses under the UCMJ.  He was found guilty of disobeying a lawful command of a commissioned officer, on 24 June 1982; and disobeying a lawful order of an NCO, on 24 June 1982.  His sentence consisted of a forfeiture of pay, reduction to pay grade E-1, and confinement at hard labor for one month.

6.  On 23 August 1982, the applicant's commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct due to his frequent incidents of a discreditable nature.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

7.  The separation authority approved the recommendation for discharge on 3 September 1982 and directed that he be furnished a UOTHC discharge.  The applicant was discharged on 9 September 1982.  He had a total of 2 years, 11 months, and 8 days of creditable service and 22 days of lost time due to confinement.  

8.  The applicant provides a copy of an award certificate, dated 22 March 1982, which shows that he was awarded the Army Achievement Medal, for meritorious achievement, during the period 28 December 1981 to March 1982.  His records also contain the orders awarding him this award.

9.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.
10.  Army Regulation 635-200, in effect, at that time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Paragraph 
14-33b pertained to patterns of misconduct, which included; frequent incidents of discreditable nature with civil or military authorities, an established pattern of shirking, or showing dishonorable failure to pay just debts.

11.  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.

12.  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, 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.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence of record shows that the applicant was discharged for misconduct, frequent incidents of a discreditable nature, which was evident by his six NJPs and one summary court-martial.  

3.  Considering the nature of his offenses and his otherwise undistinguished record of service, there is no basis for an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

4.   The applicant contends that he accumulated several company level Articles 15, under the UCMJ, throughout his military service for various alcohol related offenses which he deeply regrets.  He has changed his life around by enrolling in AA and is very active in assisting others.  The evidence shows that he was drunk and disorderly when he violated rules and regulations on two occasions for which he received non-judicial punishment.  

5.  The applicant contends that he was young and naïve to his problem at the time and is very sorry for his actions; however, there is no evidence that he was any less mature than other Soldiers of the same age who served their obligation successfully.  

6.  One specific contention was that his UOTHC discharge prevented him from obtaining employment; however, the Board does not grant relief solely for the purpose of enabling an applicant to obtain better employment opportunities.

7.  The evidence of record shows the applicant was awarded the Army Achievement Medal for meritorious achievement during the period 28 December 1981 to March 1982.  This award is shown on his DD Form 214.  

8.  Consideration was given to award of the Army Achievement Medal to the applicant; however, it was not sufficiently mitigating to warrant or support an upgrade of his UOTHC discharge.

9.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

10.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 September 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 8 September 1985.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KLW_  __E.F.___  __CD____  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.




_____Kenneth Wright    __
          CHAIRPERSON




INDEX

CASE ID
AR20060012296-
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070327
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19820909
DISCHARGE AUTHORITY
AR 635-200, chapter 14-33b(1)
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.