IN THE CASE OF:	  

		BOARD DATE: 	        22 May 2009

		DOCKET NUMBER:  AR20090002426 


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 that his undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, that after returning to the United States from a tour of duty in Okinawa he began to drink excessively and that he became alcohol-dependent which impaired his judgment.  He contends that rather than recognizing his disease and affording him treatment he was discharged from the service.  He points out that his attitude at the time was "anti-establishment" and it seemed to him the only way out was to allow himself to be degraded to a point of being unworthy.  He states that his records show he was selected for Colonel's Orderly, that he attained the rank of specialist four, and that he was a good Soldier.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 enlisted in the Regular Army on 7 April 1967 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 16B (Hercules Missile Crewman).  He arrived in Okinawa on 26 August 1967.

3.  Between 27 January 1968 and 13 February 1969, nonjudicial punishment was imposed against the applicant on four occasions for various infractions which included disobeying a lawful order, wrongful appropriation of military property, being absent without leave (AWOL), being incapacitated for duty as a result of indulgence in intoxicating liquor, and disobeying a lawful command.

4.  The applicant transferred back to the United States on 25 February 1969.

5.  Between 8 May 1969 and 19 June 1969, nonjudicial punishment was imposed against the applicant on five occasions for various infractions which included failure to go at the prescribed time to his appointed place of duty, disobeying a lawful order, AWOL, and breaking restriction.

6.  On 5 July 1969, in accordance with his plea, the applicant was convicted by a summary court-martial of failure to obey a lawful order (refusing to go on post as a sentinel).  He was sentenced to be confined at hard labor for 30 days and to forfeit $97.00 pay per month for 1 month.  On 5 July 1969, the convening authority approved the sentence.

7.  On 2 February 1970, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay.

8.  On 14 October 1970, the applicant underwent a psychiatric evaluation and was diagnosed with a severe immature personality disorder.  The applicant was cleared for any administrative decision deemed appropriate by his command.

9.  The applicant’s unit commander initiated action to separate him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  The unit commander recommended discharge due to the severe nature of the applicant's psychiatric evaluation, excessive time lost in the service, resistance to authority and regulations, and a pattern of behavior which rendered him a complete loss to the service.

10.  On 16 October 1970, after consulting with counsel, the applicant waived consideration of his case by a board of officers and representation by counsel.  He also elected not to submit a statement on his own behalf.

11.  On 19 October 1970, the applicant underwent a separation physical examination and was found qualified for separation.  He reported that his health was good on his Standard Form 89 (Report of Medical History), dated 19 October 1970, and in item 20 (Have you ever had or have you now) on this form the applicant marked "No" to Excessive Drinking Habit.

12.  On 16 November 1970, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge.

13.  On 1 December 1970, the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-212 for unfitness due to frequent incidents of a discreditable nature with civil or military authorities.  He had served 2 years, 8 months, and 7 days of creditable active service with 191 days lost due to AWOL and confinement.

14.  There is no evidence of record which shows the applicant was diagnosed with alcohol abuse or dependency.

15.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

17.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  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.

18.  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.  Although the applicant contends that he had an alcohol problem while in the Army, there is no evidence of record which shows that he was diagnosed with alcohol abuse or dependency prior to his discharge or that he referred himself for treatment of alcohol problems.

2.  The applicant’s record of service included 10 nonjudicial punishments, one summary court-martial conviction, and 191 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
 
4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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)                                         AR20090002426



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002426



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1