IN THE CASE OF:	

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080003662 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (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 readily admits that the things he did in the military were wrong.  He feels that a servicemember today would be given the opportunity to go into a rehabilitation program and stay in the military.  He has made a complete turnaround.  He quit drinking in 1994 and has not had any incidents with the police or any other authorities since that time.  He married in 1995 and has raised two children.  He admits his mistakes but feels that the changes he has made should qualify him for an upgrade to an honorable discharge.  He adds that he had a drinking problem back then and has not had a drink since 1994.

3.  The applicant provides a copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 28 November 1980.  He was trained as a Lifting and Loading Equipment Operator, in military occupational specialty (MOS) 62F.  He was promoted to pay grade E-2 effective 28 May 1981.  

3.  On 16 September 1981, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 21 August 1981 to 26 August 1981.  His punishment consisted of a reduction to pay grade E-1, a forfeiture of pay for 2 months, and correctional custody for 30 days (suspended).

4.  On 18 November 1981, the applicant was punished under Article 15, UCMJ, for being drunk and disorderly on 14 November 1981.  His punishment consisted of a forfeiture of pay and 7 days restriction and extra duty.

5.  The applicant was convicted by a special court-martial on 18 March 1982 for being AWOL from 1 December 1981 to 26 January 1982; of willfully damaging military property; and of being drunk and disorderly in the billets.  His sentence consisted of confinement at hard labor for 6 months (with that portion in excess of 75 days suspended for 6 months), and a forfeiture of $100.00 pay for 3 months (with that portion in excess of 75 days suspended for 6 months).   

6.  Item 21 (Time Lost), of the applicant's DA Form 2-1 (Personnel Qualification Record - Part ll), shows that he was AWOL from 21 August 1981 through 26 August 1981 (5 days); from 1 December 1981 through 26 January 1982 (56 days); and was in military confinement from 18 March 1982 to 18 May 1982 (61 days).  

7.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy his DD Form 214 which shows that on 20 October 1982, he was discharged, in the pay grade of E-1, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-33b(1), for misconduct due to his frequent incidents of a discreditable nature with civil and military authorities.  He was furnished an UOTHC discharge.  He had 122 days time lost due to AWOL and confinement.

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

9.  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.

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.  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.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2.  The applicant’s record contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason for the applicant's discharge and the characterization of his service and Government regularity in the discharge process is presumed.

3.  The available evidence shows that the applicant's discharge was based on his misconduct due to his frequent incidents of a discreditable nature with civil and military authorities.  The evidence shows that as a result of his misconduct he received two Article 15s and a special court-martial.  The applicant also compiled considerable time lost (122 days) in the process. 

4.  The applicant's contentions that he had a problem with alcohol were considered; however, they do not support or provide a basis to upgrade his UOTHC discharge.  The record shows that he was in the Army for nearly 1 year and 11 months, including all his lost time.  His violations of the UCMJ in which alcohol was involved both occurred in November 1981.  There were no more incidents involving alcohol to the date of his discharge on 20 October 1982; however, it is apparent his misconduct continued, in view of the reason for his discharge.

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC to honorable.  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

___x____  ___x____  ____x___  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.




      _________x______________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003662



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080003662



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1