IN THE CASE OF:	     

		BOARD DATE:	         2 October 2008

		DOCKET NUMBER:   AR20080009360 


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, an upgrade of his discharge and characterization of service.  He also requests correction of his record to show award of the Good Conduct Medal.

2.  The applicant states, in effect, that he was never offered treatment for alcohol abuse and that when he requested treatment it was denied by his unit commander.  The applicant continues that instead of allowing him to receive treatment, his commander reduced him in rank which humiliated him and made matters worse.  He further states that he was on the promotion standing list for the rank of sergeant (SGT)/pay grade E-5 and had been serving as an acting sergeant for over two years at the time he was reduced in rank.  The applicant adds that at the time of his separation, he had been in the Army for more than three and one-half years, served as a unit Training Noncommissioned Officer, and was awarded the Good Conduct Medal.  He states that he is now an ordained minister and concludes that for the past 25 years he has not been able to receive any veterans' benefits and an upgrade of his discharge would be helpful.

3.  The applicant provides no additional documentary evidence in support of this 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 Army at the age of 17, entered active duty on 18 October 1979, and was discharged on 3 October 1983.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty (MOS) 51R (Interior Electrician).  The highest rank the applicant attained while serving on active duty was specialist four/pay grade E-4.  However, at the time of his separation he held the rank of private (PVT)/pay grade E-1.  His only permanent party duty station was Fort Lewis, Washington.

3.  Headquarters, I Corps and Fort Lewis, Fort Lewis, Washington, Permanent Orders 190-40, dated 1 October 1982, awarded the applicant the Good Conduct Medal for exemplary behavior, efficiency, and fidelity in active federal military service during the period 18 October 1979 through 17 October 1982.

4.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), shows on 29 March 1983, the applicant accepted nonjudicial punishment for failing to go to his appointed place of duty at the prescribed time on 8 February 1983.  The imposed punishment included:  reduction from specialist four (SP4)/pay grade E-4 to private first class (PFC)/pay grade E-3 and the filing of the Article 15 proceedings in the restricted portion of applicant's Official Military Personnel File.

5.  The DA Form 2627 which originally imposed punishment against the applicant on 13 May 1983 is not contained in the available record.  However, a DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ), dated 
14 June 1983, shows the suspended portion of the applicant’s punishment (reduction in rank to private/pay grade E-2) imposed on 13 May 1983 was vacated.  The vacation was based on the applicant's failure to report to his appointed place of duty on 11, 13, and 18 May 1983.  



6.  A DA Form 4187 (Personnel Action), dated 11 June 1983, shows the applicant's unit reported him absent without leave effective 07:00 AM on 10 June 1983.

7.  A DA Form 4187, dated 11 July 1983, shows the applicant was dropped from the rolls of his unit after being absent without leave during the period 10 June 1983 to 11 July 1983.

8.  DA Form 4187, dated 15 August 1983, shows the applicant surrendered to military authorities at Fort Sheridan, Illinois on 9 August 1983.

9.  Headquarters, United States Army Personnel Control Facility, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky, Orders 160-3, dated 16 August 1983, assigned the applicant to the Special Processing Company of the United States Army Personnel Control Facility located at Fort Knox, Kentucky effective, 9 August 1983.

10.  Headquarters, United States Army Armor Center, Fort Knox, Kentucky, memorandum, dated 18 August 1983, Subject:  Medical Counseling Under the Provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations) shows the applicant acknowledged being counseled on the requirements for completion of a medical examination prior to separation.  He also stated he understood that if he was requesting discharge for the good of the service (Chapter 10, Army Regulation 635-200), he was not required to undergo a medical examination, however, he may request a medical examination.  The applicant stated that he did not desire to undergo a medical examination and authenticated this memorandum with his signature.

11.  Headquarters, Personnel Control Facility, Fort Knox, Kentucky, memorandum, dated 19 August 1983, Subject:  Admission of AWOL [Absence Without Leave] shows the applicant waived his right to defense counsel.  He also knowingly, willingly, and voluntarily declared that he was absent without leave from the United States Army from 10 June 1983 to 9 August 1983.  The applicant made this admission for administrative purposes so he could process out of the Army although doing so could result in his receipt of an other than honorable discharge.  He also acknowledged that his military counsel had explained to him to his complete satisfaction, all the legal and social ramifications of that type of discharge and what it would mean to him in the future.  The applicant authenticated this memorandum with his signature.



12.  Headquarters, United States Army Personnel Control Facility, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky, Orders 173-1, dated 2 September 1983, reduced the applicant in grade of rank to private (PVT)/pay grade E-1 effective 25 August 1983.  The authority for this reduction was the applicant's receipt of a Discharge Certificate under other than honorable conditions in accordance with Army Regulation 635-200, Chapter 10 and Army Regulation 600-200 (Enlisted Personnel), Paragraph 8-11.

13.  Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky, Orders 182-32, dated 19 September 1983, reassigned the applicant to the United States Army separation transfer point located at Fort Knox, Kentucky for separation processing with a discharge date of 3 October 1983.

14.  The applicant's DD Form 214 shows that he was discharged under the provisions of Chapter 10 of Army Regulation 635-200 with an under other than honorable conditions characterization of service.  The DD Form 214 also shows lost time from 10 June 1983 through 8 August 1983 and 46 days of excess leave from 19 August 1983 through 3 October 1983.

15.  The available record does not indicate the applicant had a problem with alcoholism.

16.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time an under other than honorable conditions discharge was normally considered appropriate. 

17.  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.

18.  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.

19.  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 applicant's contention that his record should be corrected to show award of the Good Conduct Medal was determined to have merit.  However, his contention that his discharge should be upgraded based upon the fact that he was not afforded an opportunity to receive treatment for alcoholism was carefully considered and determined to be without merit.

2.  Permanent Orders awarded the applicant the Good Conduct Medal for exemplary behavior, efficiency, and fidelity in active federal military service during the period 18 October 1979 through 17 October 1982.  Therefore, he is entitled to have his record corrected to show award of the Good Conduct Medal.

3.  There is no indication that the applicant had a problem with alcoholism in his available record.  Evidence shows that when afforded an opportunity to have a physical examination prior to separation, the applicant waived his right.

4.  The record shows that the applicant was absent without leave and he was dropped from the rolls of the Army prior to returning to military control.

5.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  He voluntarily elected to accept a discharge under the provisions of Chapter 10 of Army Regulation 635-200 in lieu of appearing before a trial by court-martial.

6.  Discharges under the provisions of chapter 10 of Army Regulation
635-200 requires an admission of guilt to the offense(s) charged and the requests are voluntary requests for discharge in lieu of trial by court-martial.  Evidence shows the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  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 reflects his overall record of military service.



7.  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 either a general or an honorable discharge.

8.  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 

____X___  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show award of the Good Conduct Medal for the period 18 October 1979 through 17 October 1982.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge or characterization of service.




      _______ _   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)                                         AR20080009360



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ABCMR Record of Proceedings (cont)                                         AR20080009360



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