RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 March 2008
	DOCKET NUMBER:  AR20070017348 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Gerald J. Purcell

Member

Ms. Rea Nuppenau

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 to an honorable discharge.

2.  The applicant states, in effect, that he received an UOTHC discharge for misconduct.  He has not been in any trouble with the law since receiving his discharge over 25 years ago.  He did not receive a rehabilitative transfer.
He adds that he discovered that he was an alcoholic and needed treatment and his misconduct discharge did not fit his character.

3.  The applicant provides an additional statement.  He states that he is an alcoholic and learned of his disease in the Program of Alcoholics Anonymous (AA).  He confesses that it was the best thing that happened to him.   He describes his alcohol problems and states that he needed treatment not punishment.  He elaborated on events that occurred while on active duty and after his discharge.  He states that he has suffered with his UOTHC discharge for 25 years.  He concludes that he suffered from medical problems that are military related and that it has been long enough to need medical attention and be denied, for injuries recorded that are in his medical records.

4.  The applicant provides a copy of his SF (Standard Form) 93 (Report of Medical History) and a copy of a letter from the Mayor and Chief of Police, of Tallulah, Louisiana, in support of his request.

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's record shows he enlisted in the Regular Army on 30 April 1979. He was trained as a Medical Specialist, in military occupational specialty (MOS), 91B.  He was promoted to pay grade E-3 effective 1 August 1980.  

3.  Between 1 June 1981 to 21 April 1982, he received nonjudicial punishment (NJP) on eight occasions under Article 15, of the UCMJ, for failing to go to his appointed place of duty on four occasions, for breaking restriction, for dereliction in the performance of his duties, for wrongfully using provoking language towards another Soldier, for being absent from his appointed place of duty on two occasions, and for being absent without leave (AWOL) from 26 March 1982 to 19 April 1982 (24 days).  His punishments consisted of a reduction to pay grade E-2 and E-1, forfeitures of pay, and restriction and extra duties. 

4.  On 10 February 1982, the applicant's commander initiated action to separate him 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.  

5.  On 11 February 1982, the applicant acknowledged the commander's notification of his intent to separate him from the Army.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

6.  All the documents related to the applicant's separation from the Army are not available for the Board's review, to include the recommendation as to the characterization of service he should received. 

7.  The separation authority approved the recommendation for the applicant's discharge on 12 May 1982 and directed that he be furnished a UOTHC discharge.  He also approved the request for waiver of rehabilitative transfer.  The applicant was discharged on 1 June 1982.  He had a total of 3 years and 
8 days of creditable service and 24 days of time lost due to AWOL.  

8.  On 27 December 1985, the ADRB denied the applicant's petition to upgrade his discharge.

9.  The applicant provides a copy of his SF 93, dated 19 January 1982, in which he indicated that he was in bad health; he was on no prescribed medications.  On the reverse side of his SF 93, in the examining physician summary section, an indication was made he had attempted suicide.  The attempt was drug and alcohol related.  He was diagnosed with several other medical ailments. 

10.  The applicant provided a copy of a letter from the Office of the Mayor and the Tallulah Police Department.  These letters, dated in October 2007, although they do not specifically mention an upgrade of his discharge, are believed to support an upgrade of his UOTHC discharge to honorable.  They attest to his character, attitude, and excellence in the performance of his duties.

11.  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.

12.  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.

13.  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 under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-33b(1), for misconduct, frequent incidents of a discreditable nature, which was evident by his eight NJPs.  

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 alleges that he did not receive a rehabilitative transfer; however, the approving authority indicated that he approved the request for waiver of a rehabilitative transfer.  Therefore, it is presumed that the applicant waived a rehabilitative transfer or that command recommended a waiver since they did not see that one would result in a rehabilitated Soldier who could make a positive contribution to his unit and the service. 

5.  The applicant's contentions and additional statement were considered; however, they do not support or provide a basis to upgrade his UOTHC discharge.

6.  The applicant's letters of support were considered; however, these are not sufficiently mitigating to warrant a change to his UOTHC discharge. 

7.  In view of the circumstances in this case, the applicant is not entitled to a change of his UOTHC discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___RTD _  ___GP___  __RN___  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.




____Richard T. Dunbar_____
          CHAIRPERSON




INDEX

CASE ID
AR20070017348
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080318
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19820601
DISCHARGE AUTHORITY
AR 635-200, chapter 14-33b(1)
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.