IN THE CASE OF:	  

		BOARD DATE:	  17 September 2008

		DOCKET NUMBER:  AR20080009639 


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 discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that during the period of his military service he was an alcoholic, but did not inform his chain of command that he had a problem. He also states that he received some treatment for his problem during his military service, but he did not take advantage of the treatment.  The applicant further states that he is a recovering alcoholic, he has been sober for 7 years, and he no longer has the desire to drink alcohol.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 13 December 2007.  

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 military service records show that he enlisted in the U.S. Army Reserve (USAR) for a period of 6 years on 8 July 1977 and he was ordered to active duty for training (ADT) on 15 July 1977.  Upon completion of basic combat training and advanced individual training (AIT), he was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  The applicant was honorably released from ADT on 4 November 1977 and transferred to the
376th Personnel and Administration Battalion, USAR Center, Indianapolis, Indiana.  At the time he was credited with completing 3 months and
20 days net active service this period; 7 days prior inactive service; and 3 months and 27 days total service for pay.

3.  The applicant's military service records show that he enlisted in the Regular Army (RA) for a period of 3 years and entered active duty on 5 December 1977.
He was assigned to Company B, 2nd Battalion, 1st AIT Brigade, Fort Benning, Georgia, completed AIT, and was awarded MOS 11B (Infantryman).  He was then assigned to Company B, 6th Battalion, 31st Infantry, Fort Ord, California.

4.  The applicant’s military service records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice), dated
11 April 1978.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 1940 hours,
9 April 1978, at Post Guard House, Building 1564, Fort Ord, drinking while on duty, in violation of Article 113, UCMJ; and for on or about 1700 hours, 9 April 1978, without authority, absenting himself from his appointed place of duty, to wit:  Post Guard House, Building 1564, Fort Ord, California, and remaining absent from his appointed place of duty until on or about 1915 hours, 9 April 1978, in violation of Article 86, UCMJ.  The punishment imposed was reduction to the grade of E-1 (suspended for 90 days), forfeiture of $100.00 for 1 month, and 14 days extra duty to run concurrently with 14 days restriction to the company area.

5.  The applicant’s military service records contain a DA Form 4465 (ADAPCP [Alcohol and Drug Abuse Prevention and Control Program] Military Client Intake and Follow-up Record), dated 23 June 1978.  This document shows, in pertinent part, that the applicant was a voluntary self-referral to the non-resident rehabilitation program.

6.  The applicant’s military service records contain a DA Form 4465, with a date due of 23 August 1978, and designated as a 60-day follow-up report.  This document shows, in pertinent part, that the rehabilitation methods used since the last report were command consultation and individual counseling/therapy, and that the applicant was in an on-duty, ADAPCP follow-up program.  This document also shows that the applicant’s commanding officer’s appraisal of the applicant’s conduct and efficiency during this period were rated “fair” and the applicant’s counselor’s opinion of his progress was “fair.”

7.  The applicant’s military service records contain a DA Form 4465, with a date due of 23 October 1978, and designated as a 120-day follow-up report.  This document shows, in pertinent part, that the rehabilitation methods used since the last report were command consultation and individual counseling/therapy, and that the applicant was in an on-duty, ADAPCP follow-up program.  This document also shows that the applicant’s commanding officer’s appraisal of the applicant’s conduct and efficiency during this period were rated “fair” and the applicant’s counselor’s opinion of his progress was “fair.”

8.  The applicant’s military service records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 27 October 1978.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 24 October 1978, without authority, failing to go at the time prescribed to his appointed place of duty, to wit:  the 0830 hours formation of Company B, 6th Battalion, 31st Infantry, in violation of Article 86, UCMJ; and, without authority, going from his appointed place of duty, to wit:  training with Company B, 6th Battalion, 31st Infantry, located at grid coordinate 11105669, Fort Ord, at 1630 hours, on 25 October 1978, in violation of Article 86, UCMJ.  The punishment imposed was forfeiture of $100.00 for 1 month (suspended for 60 days); 14 days restriction to the company area, mess hall, and place of worship; and 14 days extra duty.

9.  The applicant’s military service records contain a DA Form 2627, dated
21 February 1979.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 0700 hours, 1 February 1979, without authority, failing to go at the time prescribed to his appointed place of duty, to wit: Company B morning formation, in violation of Article 86, UCMJ.  The punishment imposed was reduction to private/pay grade E-2 (suspended for 30 days), forfeiture of $100.00 (suspended for 30 days), and 7 days restriction to run concurrently with 7 days extra duty.

10.  The applicant’s military service records contain a DA Form 2627, dated
13 April 1979.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, on or about 0830 hours,
3 April 1979, without authority, failing to go at the time prescribed to his appointed place of duty, to wit: Company B morning formation, in violation of Article 86, UCMJ; for on or about
3 April 1979, without authority, failing to go at the time prescribed to his appointed place of duty, to wit: Company B, 1st Platoon training, in violation of Article 86, UCMJ; and for on or about 1630 hours, 3 April 1979, without authority, failing to go at the time prescribed to his appointed place of duty, to wit: Company B recall formation, in violation of Article 86, UCMJ.  The punishment imposed was reduction to private/pay grade E-2, forfeiture of $109.00, and
14 days restriction to run concurrently with 14 days extra duty.

11.  The applicant’s military service records contain a DA Form 2627, dated
30 May 1979.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant for, on or about 1345 hours,
9 April 1979, without authority, failing to go at the time prescribed to his appointed place of duty, to wit: Company B afternoon formation, in violation of Article 86, UCMJ; for on or about 1630 hours, 9 April 1979, without authority, failing to go at the time prescribed to his appointed place of duty, to wit: Company B recall formation, in violation of Article 86, UCMJ; for on or about 0700 hours, 10 April 1979, without authority, failing to go at the time prescribed to his appointed place of duty, to wit: Company B morning formation, in violation of Article 86, UCMJ; and for on or about 0830 hours, 10 April 1979, without authority, failing to go at the time prescribed to his appointed place of duty, to wit: Company B morning formation, in violation of Article 86, UCMJ.  The punishment imposed was reduction to private/pay grade E-1, forfeiture of $209.00 per month for 2 months, and 14 days extra duty.

12.  On 13 June 1979, the company commander notified the applicant of his intent to initiate separation action to effect his discharge under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-33b(1), for misconduct based on frequent incidents of a discreditable nature with civil or military authorities.  The company commander also advised the applicant of his rights.

13.  On 19 June 1979, the applicant consulted with legal counsel.  The applicant acknowledged with his signature that he had been advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  The applicant waived consideration of his case by a board of officers and elected not to submit statements in his own
behalf.  The applicant also indicated that he understood he may expect to encounter substantial prejudice in civilian life if he was issued a general discharge under honorable conditions; that, as a result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all Veterans Administration (now known as the Department of Veterans Affairs) (VA) benefits; that he may be deprived of his rights and benefits as a veteran under 

both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  The applicant’s counsel, a commissioned officer serving in the Judge Advocate General Corps, also signed this document.

14.  On 18 June 1979, the captain serving as Commander, Company B,
6th Battalion, 31st Infantry, Fort Ord, reviewed the applicant’s statement of options and choices pertaining to the rights available to him.  The company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-33b(1), for misconduct based on frequent incidents of a discreditable nature with civil or military authorities and he cited 3 incidents of counseling and the applicant’s punishment under Article 15 on 5 occasions.  The company commander also stated that the applicant had been in every platoon in the Company, he continued to shirk his duty, and that further rehabilitation would not be productive.  The company commander recommended approval of the applicant’s discharge and forwarded his recommendation to the Commander, 6th Battalion, 31st Infantry, Fort Ord.

15.  On 19 June 1979, the major serving as Commander, 6th Battalion,
31st Infantry, Fort Ord, concurred with the company commander’s recommendation and added that any further rehabilitation of the applicant would prove useless.

16.  The applicant’s military service records contain a DA Form 2627, dated
10 July 1979.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant for, on or about 1800 hours,
12 June 1979, without authority, failing to go at the time prescribed to his appointed place of duty, to wit: battalion extra duty, in violation of Article 86, UCMJ.  The punishment imposed was forfeiture of $209.00 per month for
2 months.  This document also shows the applicant appealed the Article 15 proceedings and submitted matters for consideration by the next superior authority.  After consideration of all matters presented in the appeal, the brigade commander denied the applicant’s appeal.  It was noted in Part II (Appellate Action), Item 10, that the proceedings were conducted in accordance with the law and regulations and the punishment imposed was not unjust or disproportionate to the offense committed.  This document further shows the brigade commander and applicant placed their signatures on the document on 10 July 1979.

17.  On 13 July 1979, the colonel serving as Commander, 2nd Brigade,
7th Infantry Division, Fort Ord, reviewed the separation action pertaining to the applicant, concurred with the applicant’s chain of command that further rehabilitation efforts would prove useless and detrimental to discipline and good order of the service, and highly recommended immediate elimination of the applicant from service.  This document also shows that the brigade commander added the DA Form 2627, dated 10 July 1979, to the applicant’s administrative separation action.

18.  On 19 July 1979, the major general serving as Commander, 7th Infantry Division, Fort Ord, waived rehabilitative reassignment of the applicant, approved discharge of the applicant under the provisions of Chapter 14 of Army Regulation 635-200, with Separation Program Designator (SPD) Code of “JKA,” and directed that the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.  The commander also directed that the applicant be reduced to the lowest enlisted grade.

19.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his separation (25 July 1979) confirms that he was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, Chapter 14, and issued SPD Code “JKA.”  At the time of his discharge the applicant had completed 1 year, 7 months, and 21 days net active service this period; 3 months and 20 days prior active service; 1 year, 11 months, and 11 days total active service; 1 month and 7 days prior inactive service; and 2 years and 18 days total service for pay.

20.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

21.  The applicant’s military service records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 28 July 1981, that shows he requested upgrade of his under other than honorable conditions discharge to an honorable discharge.  On 13 August 1982, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence, determined that the applicant’s discharge was proper and equitable and denied his appeal.  The applicant was notified of the ADRB’s decision on 26 August 1982.

22.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, 
conviction by civil authorities, desertion, and absence without leave.  This 

document shows, in pertinent part, that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge or an honorable discharge, if such is merited by the Soldier's overall record.

23.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “JKA” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, Chapter 14, for misconduct based on frequent incidents of a discreditable nature with civil or military authorities.

24.  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.

25.  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, in effect, that his under other than honorable conditions discharge should be upgraded to an honorable discharge because he was an alcoholic during his military service; his chain of command was not aware that he had a problem; he received some treatment for his problem during his military service, but he did not take advantage of the treatment; and he has been sober for 7 years and no longer has the desire to drink alcohol.

2.  The evidence of record shows that the applicant was a voluntary self-referral to a non-resident rehabilitation program in the ADAPCP.  The evidence of record also shows, in pertinent part, that the rehabilitation methods used were command 

consultation and, on 2 occasions, the applicant’s commanding officer rendered his appraisal of the applicant’s conduct and efficiency as “fair” in connection with the applicant’s progress in the non-resident rehabilitation program.  In addition, the applicant’s ADAPCP counselor rated the applicant’s progress in the non-resident rehabilitation program as “fair.”  Thus, the evidence of record refutes the applicant’s claim that his chain of command was unaware that he had a problem with alcohol and that he did not take advantage of the treatment provided.

3.  The evidence of record shows the applicant’s separation under the provisions of Army Regulation 635-200, Chapter 14, for misconduct based on frequent incidents of a discreditable nature with civil or military authorities was proper and equitable and in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, the evidence of record shows that the authority, narrative reason, and SPD Code recorded on the applicant’s discharge are valid.

4.  The applicant’s record of service shows completion of only 1 year, 7 months, and 21 days of his 3-year enlistment.  During this period of military service, the applicant received nonjudicial punishment on 5 occasions for drinking on duty, absenting himself from his appointed place of duty, and failing to go at the time prescribed to his appointed place of duty on 10 occasions.  Thus, the evidence of record shows that the applicant’s record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

5.  The applicant’s 7 years of sobriety are noted and the applicant is commended for his rehabilitative efforts.  However, the applicant’s good post-service conduct alone is not a basis to warrant an upgrade of his discharge.

6.  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)                                         AR20080009639



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