IN THE CASE OF:	  

	BOARD DATE:	  11 June 2008

	DOCKET NUMBER:  AR20080004574 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).  

2.  The applicant states, in effect, that he has turned himself around since his discharge, and the only blemish left on his record is the type of discharge he received.  He claims that at the time of his discharge he was a young man with a drinking problem and bad attitude.  He claims his childhood was spent with an abusive alcoholic father and a mother who also drank.  He states that as the oldest of five children, he took more than his fair share of abuse to save his siblings from what he was going through.  He states that after dropping out of high school, he wandered around and stayed drunk most of the time.  Not quite sure what he wanted, he settled on the Army thinking it could aim him in the right direction.  He claims the only problem was he brought his drinking problem and bad attitude with him into the Army.  He claims this led to him getting into many fights and disciplinary actions, until finally the only option left to him was an UOTHC discharge, which he took with no more thought than he had given any other decision in his life.  He states that after leaving the Army, he drank for a few more years, at which time he started to realize he needed to fix himself.  He married in 1988 and had a daughter in 1989.  He quit drinking and put himself into rehabilitation, and then went to trade school and got a good job.  He became a truck driver and started to make money, and his life came full circle.  He states that now the only blemish left on his record is the discharge he received from the Army.  

3.  The applicant provides a self-authored statement in support of his application. 
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 and entered active duty on 13 June 1980.  He successfully completed basic training and advanced individual training (AIT) at Fort Campbell, Kentucky, and was awarded military occupational specialty (MOS) 11B (Infantryman) on 10 October 1980.  

3.  The applicant's record shows he was promoted to private first class (PFC) on 13 June 1981, and that this is the highest rank he attained while serving on active duty.  It also shows that during his active duty tenure, he received a Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant's record reveals an extensive disciplinary history that includes a summary court-martial conviction on 28 July 1981, and his acceptance of
non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions between 16 March and 18 September 1981.  The record also shows that the applicant was formally counseled for a myriad of disciplinary infractions by members of his chain of command on 30 separate occasions between 12 August and 18 September 1981.  

5.  On 24 September 1981, the applicant was informed of his unit commander's intent to process him for separation under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct.  

6.  On 29 September 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, and of the rights available to him and the effect of a waiver of those rights.  Subsequent to this counseling, the applicant elected to waive his rights to have his case considered by, and to a personal appearance before, a board of officers.  He also elected not to submit statements in his own behalf.  
7.  On 15 October 1981, the separation authority approved the applicant's discharge and directed the applicant receive an UOTHC discharge.  On 
20 October 1981, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued at the time shows he held the rank of private/E-1 (PV1) and that he had completed a total of 1 year, 3 months, and 
14 days of creditable active military service.  It also shows he accrued 24 days of time lost due to confinement.   

8.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Although an HD or a general, under honorable conditions discharge (GD) may be issued by the separation authority if warranted by the member's overall record of service, an UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his discharge be upgraded in order to clear the only blemish left on his record was carefully considered.  However, this factor does not provide a sufficient evidentiary basis to support an upgrade of his discharge. 

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflected his overall record of undistinguished service.  

3.  The applicant's post-service conduct is noteworthy; however, given his extensive disciplinary history, this factor alone is not sufficiently mitigating to support granting the requested relief.  The applicant's record of military service was not sufficiently meritorious for the separation authority to support an HD or GD at the time of his discharge, nor does it support an upgrade at this time.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
 
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)                                         AR20080004574



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ABCMR Record of Proceedings (cont)                                         AR20080004574


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