RECORD OF PROCEEDINGS


	IN THE CASE OF:	   


	BOARD DATE:	  23 October 2007
	DOCKET NUMBER:  AR20070007829 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry, Jr.

Chairperson

Mr. Michael J. Flynn

Member

Mr. William Blakely

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 under other than honorable conditions be upgraded to honorable.   He also requests to personally appear before the Board.

2.  The applicant states that he entered the service at eighteen years of age, was inexperienced and developed a drinking problem while on active duty.  As a result, he had problems functioning on a daily basis.  He regrets his mistakes.  He served for 9 months in the Gulf War, an experience that changed him as a person.  When he returned to the United States he was under intense pressure and the stress made him drink and become violent.  He gave up on himself and the military.  At the time, he did not know just how much his mistakes would affect his life.  

3.  The applicant provides no additional documentation.

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 15 November 1988, the applicant enlisted in the Regular Army for 6 years. He completed his initial training and was awarded military occupational specialty 44B1O (Metal Worker).  He was assigned for duty at Fort Hood, Texas.

3.  On 4 September 1990, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to report to physical training formation and for being incapacitated due to alcohol.  The punishment included reduction to private (pay grade E-2), a forfeiture of $27.06 pay per month for 1 month, and 14 days of restriction and extra duty.


4.  The applicant was assigned with his unit in Southwest Asia from 
27 September 1990 to 13 April 1991.

5.  On 13 August 1991, the applicant accepted NJP for being absent without leave from on or about 13 July 1991 to on or about 7 August 1991.  The punishment included reduction to private (pay grade E1), a forfeiture of $375.00 pay per month for 2 months, and 45 days of extra duty and restriction.

6.  On 20 August 1991, the applicant was notified by his commander that he was being considered for administrative separation under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  The applicant acknowledged this notification on the same day.

7.  On 20 August 1991, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to a pattern of misconduct.   The commander cited the applicant’s two recent NJP’s and that he had also been entered into the unit’s overweight program.  The commander stated that it was not feasible or appropriate to attempt further rehabilitation due to the applicant's lack of self discipline.  He had no potential for advancement.

8.  On 4 October 1991, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf.

9.  On 9 October 1991, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

10.  Accordingly, on 21 October 1991, the applicant was discharged under other than honorable conditions.  He had completed 2 years, 10 months, and 13 days of creditable active service, and he had 24 days of lost time due to being AWOL.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.





12.   Army Regulation 635-200 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, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested a personal appearance before the Board; however, there is sufficient evidence on the record to fully consider this case, therefore, a formal hearing is not warranted.

2.  The applicant’s explanation of having a drinking problem does not sufficiently mitigate his repeated acts of indiscipline during his military service.   

3.  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.

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

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__HOF __  _WB____  __MJF __  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

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.






_      _Hubert O. Fry, Jr.___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.