RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20070018620 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. John T Meixell

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Jeanette R. McCants

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 narrative reason for separation be changed to “Relieved from Active Duty” and that his characterization of service be upgraded from general under honorable conditions to fully honorable.

2.  The applicant states that he had no unsatisfactory performance of his duties.  He had no Article 15s, lost time, reduction in grade, etc.  He had a bad situation that led to his early discharge.  The reason for his discharge was that he had two driving under the influence (DUI) charges off post in a 4-day period.  He “was NOT driving either time or either arrest.”  It was a military town and he was railroaded.  This was not believed or investigated by his company commander.  Since his discharge he spent 1984 through 1990 working in law enforcement.  He left law enforcement for a career in industrial manufacturing and has been in plant management for the past 17 years.  If given the opportunity to have effectively presented the information back in 1983 and if he did have problems, they were not heeded or addressed.  

3.  The applicant provides no additional information.

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 20 October 1981.  He completed basic training and advanced individual training and was awarded military occupational specialty 95B (Military Police).  On 4 March 1982, he was assigned to the 988th Military Police (MP) Company, Fort Benning.  He was 
advanced to Private First Class, E-3 on 1 October 1982.  On 27 October 1982, he was reassigned to the U. S. Army Infantry Center (USAIC), MP Activity, Fort Benning, GA.  

3.  A DA Form 3975 (Military Police Report) shows that on 6 March 1983 the applicant’s vehicle was observed by a civilian patrol officer to be stalled sideways on Victory Drive.  The applicant smelled of alcohol, and he was advised of the Georgia implied consent law.  He registered a .15% on the intoximeter and was arrested.

4.  A DA Form 3975 shows that on 10 March 1983 the applicant was observed by a civilian patrol officer to be operating a vehicle.  He exited the vehicle and was staggering.  He was advised of the Georgia implied consent law.  He registered a .15% on a breathalyzer and was arrested.

5.  On 25 March 1983, the applicant’s installation driving privileges were revoked.

6.  On 3 April 1983, the applicant completed a separation physical and was found qualified for separation.  

7.  On 6 April 1983, the applicant underwent a mental status evaluation.  The examining physician found the applicant to have met the retention requirements of Army Regulation 40-501, chapter 3, and to have no psychiatric disease.

8.  On 6 April 1983, and again on 3 May 1983, the applicant’s commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  The reasons for his proposed action were the applicant’s inability to cope with military life and failure to comply with established policies.  

9.  On or about 4 May 1983, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  He elected to submit a statement in his own behalf.  

10.  The applicant stated that he was assigned to the 988th MP Company for      8 months, where he never had any problems, and he had a good attitude.  His DUIs came for personal problems, but if he had any attitude problems they were initiated by his chain of command in the USAIC MP Co.  Others within the company had more than one DUI, were late for work several times, missed formations, but (he stated) they did not have apathy or a defective attitude.  He stated his first DUI was on a Saturday but he was not counseled or talked to by any person in his chain of command until his second DUI on the following Wednesday.  No one seemed to care or ask why he had been drinking so much. 



11.  On 6 May 1983, the applicant’s commander formally recommended that    the applicant be separated under the provisions of Army Regulation 635-200, chapter 13.  He listed the specific reasons for his recommendation as the applicant’s apathy (lack of appropriate interest) and defective attitude.

12.  A DD Form 1408 (Armed Forces Traffic Ticket) shows that the applicant was stopped by MPs on 12 May 1983 for speeding (51 miles per hour in a 35 miles per hour zone) in a government vehicle.  A sworn statement from one of the MPs indicated that the applicant had an outdated (11 May 1983) dispatch for the vehicle.  

13.  A Characterization of Service Checklist for Administrative Discharge Actions noted that the applicant’s conduct and efficiency evaluations were poor/poor; that he had been twice arrested for DUI; that after being arrested the first time he was counseled orally by both his Guard Commander and his Unit Commander; that since that time he had been cited by the MPs for speeding and unauthorized use of a government vehicle; and that his appearance on a daily basis was continuously less than desirable.

14.  On 10 June 1983, the appropriate authority approved the recommendation to discharge the applicant, waived rehabilitative transfer, and directed the applicant be issued a General Discharge Certificate.

15.  On 21 June 1983, the applicant was discharged, in pay grade E-3, under
the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, with a general discharge.  He had completed 1 year, 8 months,  and 2 days of creditable active service and had no lost time.  

16.  On 14 September 1988, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

17.  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.




18.  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.  

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.  It is acknowledged that the applicant had no record of unsatisfactory performance of his duties or misconduct prior to his first DUI.  He contended that he had a bad situation, and in his statement with his separation action he noted that he had personal problems.  Whatever may have been the faults of his chain of command, there is no evidence that he sought any other means, such as the chaplain, to resolve his personal problems through acceptable means.

3.  The applicant contended that he “was NOT driving either time or either arrest.”  However, he provides no evidence to corroborate this statement.  

4.  The applicant’s good post-service conduct is commendable; however, it is    an insufficient basis on which to upgrade his discharge to fully honorable or to change the narrative reason for his separation.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jtm___  __lmd___  __jrm___  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.




__John T. Meixell_
          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.