IN THE CASE OF:	

	BOARD DATE:	 30 December 2008 

	DOCKET NUMBER:  AR20080016603 


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 that as a young Soldier, peer pressure and excessive drinking caused him to make several unwise decisions.  If not for those factors, he would not be making this request today.  He is first and foremost a patriot.  He has turned his life around since his discharge and has been a taxpaying citizen.  He recently received a life-threatening injury that has caused him to look at his health and well-being.  If this discharge is approved it will allow him to utilize the benefits that he earned.

3.  The applicant provides no supporting documentation.

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 3 December 1985, the applicant enlisted in the Regular Army for 3 years. He was 21 years, 1 month, and 13 days of age.   He completed his initial training and was awarded military occupational specialty (MOS) 76V (Material Storage and Handling Specialist).

3.  On 5 February 1986, the applicant received an accelerated advancement to private, pay grade E-2, for being an outstanding graduate of basic training (BT) and one station unit training (OSUT).

4.  On 25 April 1986, the applicant was assigned for duty as a materiel storage and handling specialist with the 295th Supply Company at Fort Lewis, Washington.

5.  On 3 June 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to go to his place of duty.  The punishment included 14 days restriction and extra duty.

6.  On 1 December 1986, the applicant accepted NJP for wrongful use of provoking words.  The punishment included a reduction to pay grade 
E-1, forfeiture of $149.00 pay per month for 1 month, and 14 days restriction and extra duty.

7.  On 19 December 1986, a medical examination found him to be qualified for separation with a physical profile of 1.1.1.1.2.1.  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. 

8.  On 24 December 1986, the applicant’s commander requested that he be barred from reenlistment.  The commander cited the applicant’s two NJPs and stated that the applicant did not demonstrate any sense of military bearing.  The bar to reenlistment was approved by the appropriate authority.

9.  On 7 January 1987, the applicant accepted NJP for overindulgence in intoxicating liquor or drugs and for being drunk while on duty [violation of Article 112, UCMJ].  The punishment included a forfeiture of $319.00 pay per month for 2 months, and 45 days restriction and extra duty.
10.  On 21 January 1987, the commander notified the applicant that he was initiating action to separate him from the Army under the provisions of Army Regulation 625-200, chapter 14, for the commission of a serious offense.   

11.  On 22 January 1987, the applicant consulted with counsel concerning his rights.   He waived his rights and elected not to make a statement in his own behalf.

12.  On 22 January 1987, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for commission of a serious offense by being drunk on duty on 7 January 1987.  The commander stated that rehabilitation was not in the best interest of the Army because it would not produce a quality Soldier.

13.  On 27 January 1987, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.

14.  Accordingly, on 2 February 1987, the applicant was discharged under honorable conditions.  He had completed 1 year and 2 days of creditable active service.

15.  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.

16.  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.

17.  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.

18.  Under the UCMJ, the maximum punishment allowed for violation of Article 112 for being drunk on duty is a punitive discharge and confinement for 
9 months.

19.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his young age and peer pressure resulted in his unwise decision to drink excessively.   

2.  The applicant’s demonstrated performance of duty as evidenced by his accelerated advancement shows that he was capable of performing to standard.

3.  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.

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

5.  The applicant's desire to obtain veterans benefits is understandable; however, this is not an appropriate basis for upgrading an individual's 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.

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



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016603



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1