IN THE CASE OF:	  

		BOARD DATE:	       14 APRIL 2009

		DOCKET NUMBER:  AR20090000823 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states that there were 11 children in his family and he was an alcoholic at the age of 13.  He maintains that when he was 17 years old he enlisted in the Army hoping it would get his problems under control.  However, it did not work and he got into trouble a few times due to drinking.  The applicant states that he has not had a drink since 2002 and he is putting his life together.  He explains that he has since gotten married, attends church on a weekly basis and has a steady job.  Additionally, he offers that he has recently had a heart attack and has to apply for disability.

3.  The applicant provides his self-authored statement, dated 18 November 2008, 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.  The applicant’s record shows he enlisted in the Regular Army and entered active duty on 30 March 1972.  

3.  On 13 June 1973, charges were preferred against the applicant for two specifications of being absent without leave (AWOL).

   a.  Specification 1:  AWOL from his unit, U.S. Army Overseas Replacement Station, Fort Dix, New Jersey, from 11 December 1972 to 19 March 1973; and

   b.  Specification 2:  AWOL from his unit, U.S. Army Personnel Control Facility, Headquarters Command, U.S. Army Training Center, Infantry, Fort Dix, from
26 March 1973 to 8 June 1973. 

4.  On 19 June 1973, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

5.  The applicant signed his request for discharge which showed that he was making the request under his own free will; that he was afforded the opportunity to speak with counsel; that he may be furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration (VA) [now known as the Department of Veterans Affairs] benefits; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit a statement in his behalf.

6.  The first lieutenant in command of Company A, U.S. Army Personnel Control Facility, Fort Dix, recommended approval of the applicant’s request for discharge for the good of the service.  

7.  On 20 July 1973, the lieutenant colonel in the position of commander of U.S. Army Training Center, Infantry, Fort Dix, recommended approval of the discharge action.  He recommended that the applicant be issued an Undesirable Discharge Certificate.

8.  The major general in command of Headquarters, U.S. Army Training Center, Infantry, Fort Dix, approved the applicant’s discharge under the provisions of chapter 10 of Army Regulation 635-200 with the issuance of an Undesirable Discharge Certificate.

9.  The applicant's DD Form 214 shows that he was discharged with an undesirable discharge, characterized as under other than honorable conditions, on 23 August 1973.  The applicant had completed 11 months and 4 days of creditable service and had a total of 172 days of time lost due to AWOL.  

10.  On 25 February 1976, the applicant appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  The ADRB denied his appeal on
14 March 1977 citing that the board determined that he was properly discharged.  
11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

12.   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.

13.  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 argues that his discharge should be upgraded because he has been an alcoholic since the age of 13.  There is no evidence in the records that show the applicant had a drinking problem when he entered the military and/or 
sought counseling to correct this problem.  Therefore, the contention by the applicant that his drinking led to his indiscipline is not sufficient as a basis for upgrading his discharge
2.  Additionally, the fact that the applicant has stopped drinking, attends church, and is putting his life together was considered.  However, good post-service conduct alone is not a basis for changing properly assigned entries and codes from a previous period of military service.  

3.  Evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of service.  

4.  The applicant's record of service included preferred charges for over 172 days of time lost due to AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, there is no basis to upgrade the applicant's discharge.

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)                                         AR20090000823



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ABCMR Record of Proceedings (cont)                                         AR20090000823



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