RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060014872 


	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.


x
	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 a fully honorable discharge. 

2.  The applicant states, in effect, that he believes his discharge was unjust because he was never afforded the opportunity to be placed in any treatment to salvage his career.  He further states that he represented the Noncommissioned Officer (NCO) Corps with a high standard of dignity and honor and he believes that he deserved an honorable discharge for his 10+ years of service.

3.  The applicant provides an addendum and a letter explaining his application as well as three third party letters supporting his request for an upgrade of his discharge. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 26 September 1991.  The application submitted in this case is dated 15 October 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 was born on 23 September 1960 and enlisted in the Regular Army on 29 December 1980 for a period of 4 years, training as a cannon crewman, assignment to the Berlin Brigade, and a cash enlistment bonus.  He completed his one-station unit training (OSUT) at Fort Sill, Oklahoma and was transferred to Germany on 12 April 1981 for assignment to the Berlin Brigade.    

4.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 23 January 1986.  On 5 December 1988, he was transferred to Fort Sill for training and assignment as a drill sergeant.  

5.  On 25 October 1991, while serving as a drill sergeant, he was arrested for driving under the influence (DUI) of alcohol.  He received a general officer memorandum of reprimand (GOMOR) and was command referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for entry into the Track I Program.  He was also transferred to another unit on Fort Sill and his chain of command supported his retention and filing of the GOMOR in his military personnel records jacket (MPRJ).  He was promoted to the pay grade of E-7 on 1 April 1991. 

6.  On 11 May 1991, while the applicant was enrolled in and attending the Advanced NCO Course (ANCOC), the applicant was again arrested for DUI, disobeying a traffic signal, no valid driver’s license, and no valid insurance.  He was disenrolled from the ANCOC on 23 May 1991 for disciplinary reasons.  

7.  On 10 June 1991, the applicant’s commander initiated a bar to reenlistment against the applicant.  He cited the applicant’s two DUI arrests as the basis for the bar to reenlistment.  The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on
12 July 1991.  The applicant did not appeal the bar.

8.  On 27 June 1991, nonjudicial punishment (NJP) was imposed against him for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay, restriction and extra duty (all suspended for 30 days).

9.  On 16 August 1991, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14, for acts or patterns of misconduct.  He cited the applicant’s DUI offenses, his NJP, his repeated failure to go to his place of duty, which included missed ADAPCP appointments, his disenrollment from the ANCOC, and his decline in performance as the basis for his recommendation.

10.  After consulting with counsel, the applicant submitted a request for a conditional waiver in which he agreed to waive appearance before an administrative separation board contingent upon his receiving a discharge no less than under honorable conditions (General Discharge).  He also elected to submit a statement in his own behalf in which he contended that his record had been impeccable up until the last year and that he needed an honorable discharge to be able to put his nearly 11 years of experience to good use in civilian life.

11.  The appropriate authority approved the recommendation for discharge on 23 September 1991 and directed that he be furnished a General Discharge Certificate. 

12.  Accordingly, he was discharged under honorable conditions on 26 September 1991, under the provisions of Army Regulation 635-200, chapter 14 for Misconduct – Pattern of Misconduct.  He had served 10 years, 8 months, and 26 days of total active service.

13.  A review of the applicant’s records shows that he was counseled on at least two occasions for missing his ADAPCP appointments and on numerous occasions for failure to go to his place of duty.

14.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

15.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense.  Although a general discharge may be issued, a discharge under other than honorable conditions is normally considered appropriate.
  
DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted by the Board; however, they are not sufficiently mitigating to warrant relief when compared to his repeated misconduct while serving as a senior NCO.  The applicant had the support of his chain of command when he committed his first offense and his chain of command not only enrolled him in a treatment program (ADAPCP), they also kept his punishment at the lowest level.  However, the applicant betrayed the confidence placed in him as a senior NCO through his subsequent misconduct and failure to complete his rehabilitation.  Therefore, his assertion that he was not afforded treatment appears to be without merit.  Given the nature of his misconduct and his rank at the time, his service simply does not rise to level of a fully honorable discharge.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
   
5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 September 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 September 1994.  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

_x___  _x ___  __x __  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.




_____x_______
          CHAIRPERSON



INDEX

CASE ID
AR20060014872
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070412
TYPE OF DISCHARGE
(GD)
DATE OF DISCHARGE
1991/09/26
DISCHARGE AUTHORITY
AR635-200/ch14 . . . . .  
DISCHARGE REASON
misconduct
BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.144.6000
626/a60.00
2.

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5.

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