IN THE CASE OF:	  

	BOARD DATE:	        17 July 2008

	DOCKET NUMBER:  AR20080005784 


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 an upgrade of his discharge.   

2.  The applicant states that his under other than honorable discharge was based upon an incident with a senior noncommissioned officer (NCO) and that the rest of his service was honorable.  He further adds that he did not want to leave the Army and was battling an alcohol dependency problem at the time, which contributed to his discharge and the incidents involved.  He concludes that he was not offered any medical or counseling for his problem and that he was discharged in lieu of treatment.

3.  The applicant provides a copy of his U.S. Navy (USN) DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 9 February 1982; and a copy of his Regular Army DD Form 214 (Report of Separation from Active Duty), dated 7 April 1976, 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.  With prior enlisted service in the USN, the applicant's records show he enlisted in the Regular Army for a period of 2 years on 23 December 1974.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions:

	a.  On 30 July 1975, for violating a company standing operating procedure (SOP) by consuming and possessing 6 percent beer, on or about 4 July 1975.  His punishment consisted of forfeiture of $50.00 pay for one month and 7 days of extra duty;

	b.  On 3 October 1975, for absenting himself from his place of duty without authority from on or about 28 September 1975 until on or about 29 September 1975, and for being disorderly in public, on or about 4 September 1975.  His punishment consisted of forfeiture of $80.00 pay for one month and reduction to PV2/E-2;

	c.  On 10 December 1975, for failing to go to his appointed place of duty on 17 November 1975 and on 1 December 1975.  His punishment consisted of forfeiture of $93.00 pay for one month, reduction to PVT/E-1 (suspended for 90 days), and 14 days of extra duty;

	d.  On 14 January 1976, for absenting himself from his place of duty without authority from on or about 0600 hours, 8 January 1976 until on or about 1300 hours on 8 January 1976.  His punishment consisted of forfeiture of $93.00 pay for one month, reduction to PVT/E-1, and 14 days of extra duty;

	e.  On 4 February 1976, for failing to go to his appointed place of duty on 
9 January 1976 and 24 January 1976, and willfully disobeying a lawful order from a superior commissioned officer on 9 January 1976.  His punishment consisted of forfeiture of $125.00 pay for two months, 30 days of extra duty, and 30 days of restriction.  The applicant appealed his punishment on 20 February 1976; however, his appeal was denied by the next superior authority on 24 February 1976;

	f.  On 12 February 1976, for absenting himself from his place of duty without authority on 11 February 1976.  His punishment consisted of forfeiture of $84.00 pay for one month (suspended for 90 days); and 

	g.  On 24 March 1976, for being absent without leave from on or about 8 March 1976 through on or about 12 March 1976.  His punishment consisted of forfeiture of $83.00 pay for one month (suspended for 90 days), 7 days of restriction, and 14 days of extra duty.   

4.  Item 21 (Time Lost Under Section 972, Title 10, United States Code) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows that the applicant was AWOL during the periods 17 October 1975 to 19 October 1975; 24 December 1975 to 4 January 1976; and 8 March 1976 to 11 March 1976.  

5.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, the DD Form 214 he was issued at the time of his discharge shows he was discharged on 7 April 1976, in accordance with chapter 13-5a of Army Regulation 635-200 (Personnel Separations), by reason of misconduct-frequent involvement of a discreditable nature, with a character of service of under other than honorable conditions.   This form further confirms he completed a total of 1 year, 2 months, and 26 days of creditable active military service and had 19 days of lost time.

6.  The applicant's records do not reflect any history of alcoholism or show that the applicant addressed the issue of alcoholism with his chain of command or with any supporting agencies at the installation to which he was assigned.  Furthermore, there is no indication in his records that he was involved in incidents with a specific senior NCO.

7.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.



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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to an upgrade of his discharge.

2.  There is no evidence in the applicant’s records and the applicant did not provide substantiating evidence that shows he suffered from an alcoholism dependency or that his frequent disciplinary problems resulted from an alcoholism dependency.  Furthermore, there is no evidence in his records that shows his discharge was the result of an incident with a senior NCO.

3.  The applicant's records reveal an extensive disciplinary history which includes 3 instances of AWOL and 7 instances of Article 15.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  It is presumed in this case that the applicant's discharge was in accordance with applicable regulation and that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge or an honorable discharge.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


									XXX
      _______________________
      	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)                                         AR20080005784



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ABCMR Record of Proceedings (cont)                                         AR20080005784



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