RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 September 2007
	DOCKET NUMBER:  AR20070008173 


	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 J. Fowler

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Ronald D. Grant

Member

Mr. Rowland C. Heflin

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 discharge be upgraded from general under honorable conditions to an honorable discharge.  He further requests that he be reinstated to the rank of Specialist (SPC)/E-4 and given financial restitution with 25-years interest.

2.  The applicant states, in effect, that he had a proven legitimate medical problem and that he received an unjust Article 15 for driving while intoxicated (DUI).  He was not legally intoxicated and that his blood test proved it.  He continues that his loss of rank from SPC to Private (PVT)/E-1 was unjust and illegal.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 23 July 1982 and a letter from the Department of Veterans Affairs, dated 13 March 2007.

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 31 August 1978 and successfully completed advanced individual training.  He was awarded military occupational specialty 19E (Armor Crewman).  He was honorably discharged on 11 March 1981 for the purpose of immediate reenlistment on 12 March 1981.

3.  On 5 May 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from a superior officer.



4.  The applicant’s records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 2 June 1982, which shows that he was directed to acknowledge receipt of the Article 15 punishment and provide any matter in mitigation, extenuation or defense within 72 hours.  This form shows that the applicant acknowledged in his own hand receipt of the Article 15 and elected to submit matters in mitigation, extenuation on his defense.

5.  On 9 June 1982, the applicant withdrew his appeal of punishment imposed against him and accepted NJP under Article 15, UCMJ for operating a privately owned vehicle (POV) while drunk. 

6.  On 6 July 1982, the applicant’s commander signed an elimination packet and a waiver of rehabilitative transfer on the applicant for separation under the provisions of Army Regulation 635-200, chapter 13 for unsuitability.  The reason cited by the commander was the applicant had received two field grade Article 15's in three months, that he did not conduct himself as a Soldier, that he was apathetic towards the Army, and that he did not respond to orders from his superiors.

7.  On 7 July 1982, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200.  The applicant declined to submit a statement on his own behalf.

8.  On 19 July 1982, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer recommendation and directed the applicant receive a general under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 13 for unsuitability.  On 23 July 1982, the applicant separated from the service after completing 3 years, 
10 months, and 23 days of creditable active service.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance.  Commanders will separate a Soldier for unsatisfactory performance when it is clearly established that, in the commander’s judgment, the Soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to an honorable discharge and that he should be reinstated to the rank of SPC with financial restitution with 25-years interest.
 
2.  The applicant's records show that he received two field grade Article 15s within two months and the latter was for operating a POV while drunk.   Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

3.  The applicant's administrative separation was accomplished in accordance with applicable regulation with no indication of procedural errors that would tend to jeopardize his rights.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant further contends that he had a proven legitimate medical problem and that he received an unjust Article 15 for operating a POV while drunk.  However, records show that he was provided the opportunity to appeal the Article 15 punishment and to provide evidence which would mitigate or defend his actions which resulted in the issuance of the Article 15 for operating a POV while drunk.  The Article 15 which is authenticated in the applicant's own hand clearly shows that he elected to withdraw his appeal to provide any information that would mitigate, extenuate or stand in defense of his actions.  

6.  Therefore, the applicant's contention that he had a proven legitimate medical problem and that he received an unjust Article 15 for operating a POV while drunk that resulted in the issuance of the Article 15 is without factual basis.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JEV  __  __RDG  _  __RCH__  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.





__JEV  __  __RDG  _  __RCH__
          CHAIRPERSON




INDEX

CASE ID
AR20070008173
SUFFIX

RECON

DATE BOARDED
19 SEPTEMBER 2007
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
MS. MITRANO
2.
144.0135.0000
3.
144.0000.0000
4.

5.

6.