IN THE CASE OF:	  

		BOARD DATE:	  21 May 2009

		DOCKET NUMBER:  AR20090002322 


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 general discharge to an honorable discharge and his records corrected to show he served 24 months of active service.

2.  The applicant states, in effect, that he was a medic in an artillery unit first aid station and he did what he was told to do by his superior noncommissioned officer.  He states that he was ridiculed for his actions, and the ridicule included him being accused of being drunk on his birthday, being consistently required to work in the unit's field kitchen during military maneuver field training exercises, and receiving a chapter 13 discharge.  

3.  The applicant provides a personal statement 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 military personnel record shows he enlisted in the Regular Army for a 4-year period on 9 August 1991.  He completed basic combat and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).  The highest rank/grade he attained during his military service was private first class/pay grade E-3.

3.  On 30 December 1992, the applicant accepted punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being incapacitated for the proper performance of his duties as a result of previous over indulgence or intoxication due to liquor or drugs. 

4.  The applicant’s military personnel record reveals multiple performance and disciplinary counseling statements on various dates between November 1992 and April 1993 that included multiple instances of failure to follow instructions; failure to go to his appointed place of duty at the prescribed time; failure to follow orders; intoxication and disorderly conduct; and personal financial mismanagement.

5.  On 6 May 1993, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations), for unsatisfactory performance and failure to attain basic competencies required of a professional Soldier.  The immediate commander recommended a General Discharge Certificate.   

6.  On 6 May 1993, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  

7.  On 28 May 1993, after consulting with counsel, the applicant acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected to submit a statement in his own behalf.  In summary, he requested that he be retained in the service, provided a rehabilitative transfer, and/or discharged with an honorable characterization of service.  He stated that he developed a drinking problem while on active duty and that he was enrolled in the post alcohol rehabilitation program; however, he was pulled from the program upon initiation of a chapter 13 discharge.  He further stated, in effect, that his alcohol problem stemmed from a history of alcoholism in his extended family.  

8.  On 28 May 1993, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200 because of unsatisfactory performance.  The immediate commander remarked that the applicant had failed to attain the basic competencies required of a professional Soldier, that he had a history of repeated failures to be at his appointed place on time, and that he received nonjudicial punishment for being incapacitated on duty due to wrongful previous overindulgence of alcohol or drugs.  The commander stated he had frequently counseled the applicant; however, the applicant did not show the ability or desire to cope with the daily responsibilities of being a Soldier.  The immediate commander further recommended a waiver of the rehabilitative transfer requirements and recommended a general discharge.

9.  On 2 June 1993, the separation authority approved the applicant’s discharge, under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance, waived the rehabilitative requirements, and directed the applicant be furnished a General Discharge Certificate.  

10.  Accordingly, the applicant was discharged on 17 June 1993.  The DD Form 214 he was issued confirms he was discharged with a characterization of service of under honorable conditions (general).  This form further confirms he completed a total of 1 year, 10 months, and 9 days of creditable active service.

11.  On 27 November 1996, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.  The ADRB determined that the applicant was properly and equitably discharged. 

12.  Army Regulation 635-200 (Enlisted Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the Soldier will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the Soldier to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.


13.  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.  

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to an honorable discharge and that his active service should be corrected to show
he served 24 months. 

2.  The evidence of record shows that the applicant displayed a pattern of unsatisfactory performance to include incapacitation for the proper performance of his duties as a result of previous overindulgence or intoxication due to liquor or drugs and that he did not respond to counseling by his chain of command regarding his responsibility to meet Army standards.  Accordingly, his immediate commander initiated separation action against him.   All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  While the applicant contends that he was ridiculed for doing what he was told to do by his superiors, he has not submitted any evidence to support his contention.

4.  Since the applicant enlisted in the Regular Army on 9 August 1991 and served continuously until his discharge on 17 June 1993 records show he served 1 year, 10 months, and 9 days of creditable active service of his 4-year enlistment.  The applicant did not submit evidence nor is there sufficient evidence in his military personnel record to amend his DD Form 214 to show 24 months of active duty service.

5.  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 has failed to submit evidence that would satisfy that requirement.  
5.  In view of the foregoing, there is insufficient evidence to neither upgrade the applicant's general discharge nor change his DD Form 214 to reflect 24 months of net active service.

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)                                         AR20090002322



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ABCMR Record of Proceedings (cont)                                         AR20090002322



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