IN THE CASE OF:	  

		BOARD DATE:	       18 AUGUST 2009

		DOCKET NUMBER:  AR20080019787 


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 his general, under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant provides no statement. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 military records show he enlisted in the U.S. Army Reserve (USAR) on 20 June 1985.  He was awarded military occupational specialty 
(MOS) 13F (fire support specialist).  He subsequently enlisted in the Regular Army (RA) on 11 September 1986.  The available records do not show any significant acts of achievement or valor during his military service.  He was advanced to pay grade E-4 on 1 March 1988.

3.  Records show that on 30 September 1988 the applicant received general counseling regarding a consistent pattern of alcohol-related problems.  On the same date he was informed that he was being considered for possible elimination under the provisions of Chapters 5, 13, or 14 (section III), Army Regulation 635-200 (Personnel Separations – Enlisted Separations), due to unsatisfactory performance and misconduct.

4.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 23 November 1988 for being found drunk while on duty on or about 30 September 1988. 

5.  On 7 December 1988, the applicant acknowledged he had been advised by his consulting counsel of the basis for the contemplated action to accomplish his separation for commission of serious offense under the provisions of Army Regulation 635-200, chapter 14 and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  The applicant acknowledged that he understood he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further acknowledged he understood that as a result of issuance of a separation under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.  He acknowledged he understood that if he receives a discharge certificate/character of service which is less than honorable he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he should realize that an act of consideration by either board does not imply that his discharge will be upgraded.

6.  On 8 December 1988, the applicant's immediate and intermediate commanders recommended he be separated under the provisions of Army Regulation 635-200, chapter 14-12c, for being drunk on duty.

7.  On 8 December 1988, the separation authority approved the recommendation for separation under the provisions of Army Regulation 635-200, chapter 14c, for commission of a serious offense and directed that the applicant be issued a General Discharge Certificate.  On 16 December 1988, the applicant was 


discharged accordingly.  The DD Form 214 issued to the applicant shows he 
completed a total of 2 years, 3 months, and 6 days of active duty for this period of service.  This document also shows he served 1 year, 6 months, and 7 days of prior active and inactive military service.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Chapter 14, in effect at that time, applied to separation for misconduct.  At that time, paragraph 14-12c provided for the separation of personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and conviction by civil authorities.

10.  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's record shows he was counseled regarding a consistent pattern of alcohol-related problems and that he accepted NJP for commission of a serious offense (being found drunk while on duty).  Such conduct would certainly warrant an administrative separation from the Army.

2.  Documents contained in the applicant's records confirm that his rights were protected throughout the discharge process.

3.  Based on the applicant's record of indiscipline, his 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, he is not entitled to an honorable discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20080019787



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ABCMR Record of Proceedings (cont)                                         AR20080019787



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