IN THE CASE OF:	  

	BOARD DATE:	  15 October 2008

	DOCKET NUMBER:  AR20080010241 


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 general discharge under honorable conditions be upgraded to honorable. 

2.  The applicant states, in effect, that he messed up a decent career by drinking and a one-time use of marijuana.  He contends that he had gone through a terrible divorce and child custody battle that had left him both mentally and physically sick.  He made the mistake of drinking and driving that resulted in a terrible accident.  He also tried marijuana once and tested positive in a drug urinalysis.  He was told that after 18 years he could request to have his discharge upgraded and is now asking for that upgrade. 

3.  The applicant provides copies of letters of appreciation and commendation; certificate of promotion to specialist four, pay grade E-4; Equipment Operator’s Qualification Record (DA Form 348); two Army Achievement Medal Certificates; a Good Conduct Medal Certificate; five Certificates of Achievement; Diploma, Lance Missile Crewman Course; ten certificates of training; an Honorable Discharge Certificate; a General Discharge Certificate; and his high school equivalency certificate, 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.  On 5 January 1982, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 13N (Lance Missile Crewman). 

3.  On 21 May 1982, the applicant was assigned for duty as a missile handler with the 1st Field Artillery Division, in the Federal Republic of Germany.

4.  On 2 February 1983, the applicant was advanced to specialist four (SP4), pay grade E-4.

5.  On 28 December 1984, the applicant was honorably discharged for the purpose of immediate reenlistment.  On 29 December 1984, he reenlisted for his present duty assignment.

6.  On 31 January 1986, the applicant was assigned for duty as a lance missile crewmember with the Staff and Faculty Battalion, Fort Sill, Oklahoma.

7.  On 23 November 1986, the applicant was assigned for duty as a vehicle driver with the 1st Battalion, 32nd Field Artillery Brigade, in the Federal Republic of Germany. 

8.   On 30 November 1987, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for operating a vehicle while drunk.  The punishment included reduction to private first class (PFC), pay grade E-3.  He did not appeal the punishment.

9.  On 15 March 1988, the applicant received a letter of reprimand (LOR) for losing control of his vehicle and hitting a fence.  The LOR also stated that the military police had detected the smell of alcohol on his breath and administered a blood alcohol test that indicted 1.60 milligrams of alcohol per milliliter of whole blood.  The applicant acknowledged receipt of the LOR and did not submit a rebuttal.  The LOR was filed in his Official Military Personnel File (OMPF).


10.  On 1 October 1988, the applicant was again advanced to SP4.

11.  On 26 June 1989, the applicant was reduced to pay grade E-3.  The available records do not contain any documentation pertaining to this reduction.

12.  On 21 August 1989, the applicant accepted NJP for breaking restriction, failing to go at the time prescribed to his appointed place of duty, and for being drunk on duty.  The punishment included reduction to private (PV2), pay grade
E-2, forfeiture of $100.00 pay per month for 2 months, and 30 days restriction.  He did not appeal the punishment.

13.  On 28 August 1989, at a mental status evaluation, the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good. There was no significant mental illness.  The applicant was mentally responsible. He was able to distinguish right from wrong and to adhere to the right.

14.  On 5 September 1989, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to commission of a serious offense. The commander stated that the applicant’s duty performance was below standards and were a disgrace to the United States Army.  He had committed several acts of misconduct, had no respect for his superior leaders, and had a very apathetic attitude.  The commander stated that his discharge would be in the best interest of the United States Army.

15.  On 8 September 1989, the applicant consulted with counsel concerning his rights and waived his rights and consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf. 

16.  On 12 September 1989, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate and not be transferred to the Individual Ready Reserve (IRR).

17.  Accordingly, on 26 September 1989, the applicant was discharged under honorable conditions.  He had completed 7 years, 8 months, and 22 days of creditable active service.

18.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
19.  Army Regulation 635-200 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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

20.  Army Regulation 635-200 further provides, in pertinent part, that the misconduct is considered a commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Uniform Code of Military Justice.

21.  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.

22.  Under the UCMJ, the maximum punishment allowed for being drunk on duty is a punitive discharge and confinement for 9 months.

DISCUSSION AND CONCLUSIONS:

1.  The record shows that the applicant received NJP for being drunk on duty.  This is clearly a commission of a serious offense.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

4.  The applicant's record of good service is greatly diminished by his misuse of alcohol and subsequent misconduct.  

5.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080010241



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