IN THE CASE OF:	  

		BOARD DATE:	  9 September 2008

		DOCKET NUMBER:  AR20080009354 


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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he was charged with black marketing goods and with larceny of a coat while stationed in Germany.  He claims he was never afforded the opportunity to get a statement from the alleged victim who knows the taking of the coat was an accident that resulted in him mistaking the coat for his own.  He also states that possession of drug paraphernalia charges were added to his record without his knowledge and that he never tested positive for drugs while in the Army.  He further claims that all of his offenses were actually alcohol related and his unit readily supplied the alcohol by providing inexpensive beer in the day room, where you could run a tab in between pay days.  He now requests that his UD be upgraded to an HD.

3.  The applicant provides an Application for Review of Discharge from the Armed Forces of the United States (DD Form 293) 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 that he enlisted in the Regular Army and entered active duty on 30 December 1974.  He was trained in, awarded, and served in military occupational specialty (MOS) 94B (Food Service Specialist), and the highest rank he attained while serving on active duty was private first class (PFC).  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

3.  The applicant's Official Military Personnel File (OMPF) contains a Receipt for Prisoner or Detained Person (DD Form 629), dated 22 January 1976.  This document shows the applicant was detained at the Mainz Military Police (MP) Station for the wrongful possession of Valium, a dangerous drug.  

4.  On 29 January 1976, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order from a commissioned officer and for disobeying the lawful order of a superior noncommissioned officer (NCO).  His punishment for these offenses was a forfeiture of $150.00 per month for two months (Suspended for 180 days) and 15 days extra duty.

5.  The applicant's OMPF also contains Chronological Record of Medical Care (SF 600) and a Clinical Record Cover Sheet (DA Form 3647-1), which show he was admitted to the 97th General Hospital and was there from 22 March to 
26 March 1976, during which time he received detoxification treatment based on his improper use of amphetamine drugs.  


6.  On 8 April 1976, the applicant accepted NJP for failing to go to his appointed place of duty at the prescribed time; absenting himself from his place of duty; disobeying a lawful order from a superior NCO; and for being incapacitated for the proper performance of his duties as a result of previous indulgence in intoxicating liquors.  His punishment for these offenses was a forfeiture of half a month's pay two months, reduction to private/E-1 (PV1); and 45 days of restriction and extra duty.

7.  The applicant's OMPF includes a DD Form 629, dated 26 May 1976, which shows he was detained at the Mainz MP station for wrongful possession of marijuana.  

8.  On 18 May 1976, the applicant accepted NJP for stealing a jacket valued at $50.00, for breaking restriction, and for soliciting another Soldier to disobey a general regulation by purchasing whiskey for an unauthorized transfer.  His punishment for these offenses was confinement for 21 days.  

9.  On 21 June 1976, the applicant accepted NJP for wrongfully having in his possession a smoking pipe containing marijuana.  His punishment for this offense was 30 days confinement (suspended).

10.  On 12 October 1976, the applicant accepted NJP for assault of a Military Police non-commissioned officer, disobeying lawful orders, and for being drunk and disorderly in the German Police station.  His punishment for these offenses was 30 days restriction and extra duty.

11.  On 16 September 1976, the unit commander notified the applicant that separation action was being initiated on him under the provisions of Paragraph
13-5(a), Army Regulation 635-200, for misconduct.  The unit commander cited the applicant's frequent incidents of discreditable nature with civil and/or military authorities as the basis for the separation action.  The unit commander further indicated that the applicant was a malinger, that he continually disobeyed rules and instructions, that his military bearing is next to none, that he demonstrated disrespect and apathy toward his superiors and the Army, and that his conduct during his off duty time was a disgrace to the United States Army.

12.  On 30 September 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of his rights.  Subsequent to this counseling, he waived consideration of his case by and personal appearance before an administrative separation board, and his right to consulting counsel.  He also elected not to submit a statement in his own behalf.  

13.  On 7 October 1976, the separation authority approved the separation action and directed the applicant receive an UD.  On 18 October 1976, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued shows he had completed a total of 1 year, 10 months, and 19 days of creditable active military service.

14.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for a change to his discharge within the ADRB's 
15 year statute of limitations. 

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time contained the policy and outlined the procedures for separating individuals for unfitness (misconduct).  An UD was normally considered appropriate for members separated under these provisions.  The separation authority could grant a general, under honorable conditions discharge (GD) or honorable discharge (HD) if it was warranted based on the member's overall record of service. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that all of his offenses were actually alcohol related and that his alcoholism was caused by his unit readily supplying the alcohol to members in the unit was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation in effect at the time.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  

3.  The record shows the applicant had an extensive disciplinary history that included his acceptance of NJP on five separate occasions.  His misconduct included several drug related offenses, and his medical record confirms he was  hospitalized for detoxification treatment for amphetamines.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  As a result, his overall record of service at the time of his discharge was not sufficiently meritorious for the separation authority to support the issue of a GD or HD, 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)                                         AR20080009354



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009354


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1