RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20080000661 


	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.




Director



Analyst
      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 request is provided by his counsel below. 

2.  The applicant defers to counsel's statement below. 

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the U.S. Report of Transfer or Discharge) and 2 reference letters.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's undesirable discharge, characterized as under other than honorable conditions, be upgraded.

2.  Counsel states in effect, that the applicant's discharge is unjust and under the principle of equity, should be upgraded.  He was only 18 years old when he enlisted and had only completed 2 years of high school.  He became addicted to alcohol while in Germany.  He eventually won his battle with alcoholism and is now 71 years old and sober, although he suffered a mini-stroke.  He contends the applicant's discharge was unjust because the unit commander used him as a convenient pawn to keep him in the unit and because his Army records were destroyed, he was robbed of a chance to defend himself.   

3.  Counsel further indicates that the applicant received several Article 15s prior to discharge for missing bed check and being late to formation.  All his infractions can be attributed to his alcohol use.  The unit commander wanted him to reenlist because the applicant was the only turret artillery mechanic in the unit.  The unit commander told the applicant if he reenlisted, he would send him to alcohol rehabilitation for 30 days and that he would tear up the Article 15s.  When the applicant turned down the unit commander's offer, the unit commander pursued a summary court-martial against the applicant hoping that he would capitulate.  The applicant's contentions are credible because he received a summary court-martial just a couple of weeks before he was due to go on terminal leave.  The applicant accepted the summary court-martial believing he would only receive some type of barracks restriction; instead he was given an under other than honorable conditions discharge.  It was only this past year after conversations with a former trial counsel and instructor in administrative law at The Judge Advocate General's School that the applicant discovered that the facts and circumstances surrounding his discharge amounted to an injustice against him.

4.  Counsel provides the evidence listed above.

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 9 October 1998, the applicant was advised that his official military records were not available to the Board for review.  A fire destroyed approximately
18 million service members’ records at the National Personnel Records Center in 1973.  It was believed that the applicant’s records were lost or destroyed in that fire.  Although his official records have now been recovered, they were partially destroyed and only the left portions of the available documents are legible.  Therefore, a review is being conducted based on the limited evidence available in these damaged documents. 

3.  The applicant provided a copy of his DD Form 214 which shows that he served in the Regular Army from 8 July 1954 through 18 June 1957.  He was trained in, awarded, and served in military occupational specialty (MOS)
131.10 (Armor Crewman).  He also attended the 6-week turret mechanic course while stationed in Germany.  He was administratively discharged under the provisions of Army Regulation 635-208 by reason of unfitness for undesirable habits and traits.  He attained the rank and grade of private first class/E-3.  He was credited with 2 years, 11 months, and 11 days of active military service.  He was issued an Undesirable Discharge Certificate, with service characterized as under other than honorable conditions on his DD Form 214.

4.  The legible documents show that on 1 March 1956, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to repair.  His punishment consisted of 14 days of company restriction.  He also received NJP on 6 other occasions according to the unit commander's comments in his discharge packet. 
 
5.  On 7 May 1957, a summary court-martial convicted the applicant of failing to go to his appointed place of duty and being absent from his unit.  The resultant sentence included a reprimand and a forfeiture of $40.00. 

6.  Most of the applicant's discharge packet was destroyed; however, the unit commander indicated that he was initiating separation action based on the applicant's 7 NJPs and his "courts-martial," which indicates that he may have 
been court-martialed on more than one occasion.  There is also some evidence that the applicant was hospitalized and treated for his alcohol problem in Baumholder, Germany.

7.  The applicant provided 2 personal references attesting that he is reliable, dependable, conscientious, honest, and courteous.  

8.  Army Regulation 635-208, then in effect, set forth the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service.  An undesirable discharge was normally considered appropriate. 

9.  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.

10.  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.

11.  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.





DISCUSSION AND CONCLUSIONS:

1.  The available record shows that the applicant received NJP on 7 separate occasions and was convicted by at least one summary court-martial.  It appears that the command attempted to assist the applicant in performing and conducting himself to Army standards by the imposition of NJP.  The applicant apparently failed to respond appropriately to these efforts and continued with his infractions of discipline.  

2.  Based on the available evidence it appears that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no overt evidence of arbitrary or capricious actions by the command and no evidence that the unit commander attempted to coerce the applicant into reenlistment.  It also appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process, to include his appearance before an administrative separation board to present evidence in his own behalf.

3.  Although the applicant contends that his discharge was unjust, he failed to provide sufficient evidence in mitigation of his misconduct other than his addiction to alcohol.  While there is merit to the applicant's contention that he had an alcohol problem, he freely chose to violate the Army's policy not to abuse alcohol and compromised the special trust and confidence placed in a Soldier.  The applicant had the duty to support and abide by the Army's alcohol policies and by continuing his abuse of alcohol, he knowingly risked a military career by engaging in continued misconduct. 

4.  The available evidence shows the applicant may have received more than one summary court-martial.  However, contrary to his contentions, a summary court-martial can not impose a punitive discharge and he was administratively discharged.

5.  Based on the available evidence and the applicant's multiple infractions of discipline, administrative regularity is presumed in his discharge process and his service does not meet the standards of acceptable conduct and performance for an honorable or general discharge.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  Therefore, he is not entitled to the relief he has requested.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__tsk___  __jlp___  __dwt___  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.



							TSK
      ______________________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000661



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508