IN THE CASE OF:	  

		BOARD DATE:	       10 March 2009

		DOCKET NUMBER:  AR20080019328 


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 an upgrade of his discharge to honorable conditions.

2.  The applicant states, in effect, that his discharge should be upgraded.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 26 May 1982, in support of his request.

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 records show he enlisted in the Regular Army for a period of 3 years on 6 May 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He also executed a 4-year reenlistment in the Regular Army on 17 February 1984.  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  The applicant’s records show he served in Hawaii from 18 February 1983 to 3 April 1984 and Korea from 11 September 1985 to 12 September 1986.  His records further show he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar, the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, the Army Service Ribbon, the Overseas Service Ribbon, and the Good Conduct Medal.  His records do not reveal any significant achievements or accomplishments during his military service.

4.  On 2 April 1985, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for driving a motor vehicle under the influence (DUI) of alcohol.  The facts and circumstances surrounding this NJP are not available for review with this case; however, his DA Form 2-1 (Personnel Qualification Record) shows he was reduced from specialist four/E-4 to private first class/E-3.

5.  On 20 January 1987, the applicant received a general officer letter of reprimand for another instance of DUI on 5 January 1987.

6.  On 14 April 1987, the applicant’s immediate commander notified the applicant that he was initiating separation action against him in accordance with paragraph 14-12c of Army Regulation 635-200 (Personnel Separations) for misconduct.  The immediate commander cited the applicant’s blatant disregard for Army published standards of conduct by being involved in no less than four alcohol-related incidents and an incident of being confined at a civilian jail for a DUI charge.

7.  On 14 April 1987, the applicant acknowledged receipt of the separation memorandum and, on 15 April 1987, he consulted with legal counsel and was advised of the basis for the contemplated separation for misconduct and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further elected to submit a statement on his behalf.

8.  In his statement, the applicant acknowledged having two instances of DUI over a period of 3 years and alleged that he was not referred to a rehabilitation and/or treatment program until his most recent incident.  He further apologized for his misconduct and appealed to his commander to allow him to finish his enlistment so he could take advantage of his education benefits.

9.  On 15 April 1987, the applicant’s immediate commander initiated separation action against the applicant in accordance with chapter 14 of Army Regulation 635-200.  The immediate commander cited the specific reasons for the action as the applicant’s repeated acts of misconduct and total disregard for Army published standards of conduct for military personnel.  He added that the applicant’s involvement in no less than four alcohol-related incidents with both civil and military authorities demonstrated that he lacked the resolve and self-control required of him as a Soldier.  The immediate commander further requested a waiver for a rehabilitative transfer and recommended an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 29 April 1987, the applicant’s intermediate commander concurred with the immediate commander and stated that the applicant had clearly been identified as an alcohol abuser and had no desire to follow rules and regulations. He further recommended an Under Other Than Honorable Conditions Discharge Certificate.

11.  On 7 May 1987, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed the applicant be furnished a General Discharge Certificate.  The DD Form 214 the applicant was issued confirms he was discharged on 26 May 1987 with an under honorable conditions (general) character of service.  This form further confirms that the applicant completed 6 years and 21 days of creditable active military service.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15 year statute of limitations.

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  The separation reason in all separations authorized by this paragraph will be "misconduct."  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

14. 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to honorable conditions.

2.  The applicant's record of service shows that he had several incidents involving alcohol, and received NJP under the provisions of Article 15 of the UCMJ and a letter of reprimand.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  The applicant’s repeated misconduct and failure to respond to counseling diminished the quality of his service.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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.


															XXX
      _________________________
                 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)                                         AR20080019328



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080019328



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1