RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 December 2007
	DOCKET NUMBER:  AR20070007996 


	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

Ms. Loretta D. Gulley

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Rose M. Lys

Member

Mr. Edward E. Montgomery

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 under other than honorable conditions discharge be upgraded to honorable. 

2.  The applicant states, in effect, that clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a “bad” discharge.  He also states, in effect, that his ability to serve was impaired because of family problems and states, that he tried to apply for a hardship discharge but was unfairly told to forget it.  The applicant continues to state that his ability to serve was impaired by his youth and immaturity.  He finally states the use of alcohol impaired his ability to serve.  

3.  The applicant submitted a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of an undated DD Form 3822-R (Report of Mental Status), and a copy of an Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Client Intake Record in support of his application. 

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.  The applicant enlisted in the Regular Army on 25 November 1980, for a period of 3 years.  He completed the required training and was awarded military occupational specialty 16R (ADA Short Range Gunnery Crewman).  The highest rank he attained while serving on active duty was Private (PV2), pay grade E-2.  

3.  The applicant's record shows no acts of valor, significant achievement or service warranting special recognition.

4.  On 1 October 1981, the applicant accepted nonjudicial punishment (NJP) for resisting lawful apprehension by the German Police and the Schwabach Community Military Police, for being drunk and disorderly in public, for breaking glass and threatening persons in the local German Gasthaus, for using disrespectful language toward a noncommissioned officer (NCO), and for disobeying a lawful order.  His punishment consisted of a reduction to the grade of Private (E-1), a forfeiture of $250.00 pay per month for 2 months, and 45 days of restriction and extra duty.

5.  On 30 November 1981, the applicant accepted nonjudicial punishment (NJP) for disobeying a lawful order and for being disrespectful to a NCO.  His punishment consisted of a forfeiture of $250.00 pay per month for 2 months, 45 days restriction, and 45 days extra duty.

6.  The ADAPCP Client Intake Record shows that on 4 January 1982, the applicant was enrolled in the ADAPCP program as the result of an investigation and/or apprehension.

7.  On 27 February 1982, the applicant was convicted by a summary court-martial of being drunk and disorderly, resisting apprehension, assaulting an NCO, and communicating a threat.  The resultant sentence was a reduction to the grade of Private (E-1), a forfeiture of $367.00, and confinement at hard labor for 30 days.  

8.  On 12 March 1982, a Mental Status Evaluation cleared the applicant for any action deemed appropriate.

9.  The undated Mental Health Evaluation submitted by the applicant suggests continued evaluation and possible administrative separation.

10.  On 22 April 1982, the applicant’s unit commander advised the applicant that he was recommending him for discharge under the provisions of Army Regulation 635-200, for misconduct – due to his frequent involvement in incidents of a discreditable nature with civil or military authorities.  

11.  On 29 April 1982, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects and of the rights available to him.  The applicant indicated that he would not be submitting a statement on his behalf.

12.  The approval authority approved the recommendation on 4 May 1982 and directed that he be discharged under the provisions of Chapter 14, AR 635-200 and that he be issued an Under Other Than Honorable Conditions Discharge Certificate.

13.  On 5 May 1982, a physical examination cleared the applicant for separation.

14.  On 10 May 1982, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, paragraph 
14-33b(1) for misconduct due to his frequent involvement in incidents of a discreditable nature with civil or military authorities.  The DD Form 214 issued to him at the time, confirms the applicant completed a total of 1 year, 4 months, and 22 days of creditable active military service with 24 days time lost.

15.  Army Regulation 635-200 (Personnel Separations), sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14 of this regulation 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, conviction by civil authorities, desertion, or absences 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.  A discharge under other than honorable conditions is normally considered appropriate.

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

17.  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.

18.  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 were carefully considered and found to be insufficient in merit. 

2.  Records show that the applicant was 21 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  There is no evidence in the applicant’s record that shows he had any extreme family problems nor did the applicant give any indication that he had any other problems which would have resulted in him requesting a hardship discharge during his active duty enlistment or during his discharge physical.  Therefore, he is not entitled to an honorable or general discharge.

4. While it is true that the ADAPCP emphasizes alcohol and drug abuse deterrence, prevention, education, and treatment, it is also true that the Army's overriding goal is improved readiness and, to that end, Soldiers who abuse alcohol or drugs, or who commit misconduct while under the influence of alcohol or drugs, are still subject to discharge.  If discharged for misconduct, an under other than honorable conditions discharge is still considered appropriate.

5.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable or general discharge.

6.  The evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.  

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






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KAN__  ___RML_  __EEM  _  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.




___ Kathleen A. Newman ___
          CHAIRPERSON




INDEX

CASE ID
AR20070007996
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/12/06
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.

2.

3.

4.

5.

6.