IN THE CASE OF:	  

		BOARD DATE:	        22 September 2009

		DOCKET NUMBER:  AR20090002618 


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 discharge under other than honorable conditions be upgraded to a general under honorable conditions discharge.

2.  The applicant states that he was facing a medical discharge because he has sickle cell anemia and left knee damage, but it was withheld to discharge him for alcoholism.  He also states that one indiscretion should not penalize him for the rest of his life and that he has completed several workshops and seminars regarding his alcoholism.

3.  The applicant provides two certificates from the Department of Veterans Affairs (VA) 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 record shows he enlisted in the Regular Army on 15 July 1980.

3.  The applicant’s military record reveals a disciplinary history that includes his acceptance of the following nonjudicial punishments (NJP):

	a.  on 11 April 1985, for operating a passenger vehicle while drunk;

	b.  on 21 August 1985, for without authority going from his guard post with intent to abandon the same; and

	c.  on 26 November 1985, for failure to go at the prescribed time to his appointed place of duty.

4.  On 30 July 1985, the applicant underwent a medical evaluation board (MEBD) for anterior cruciate insufficiency of the left knee, anterior lateral rotary instability complication, and documented full thickness of the lateral femoral condyle with noted severe instability.  The MEBD recommended the applicant be referred to a physical evacuation board (PEB).  On 31 July 1985, the applicant concurred with the findings and recommendations of that board.

5.  On 14 November 1985, a bar to reenlistment was initiated against the applicant for receipt of three instances of NJP and two incidents of nonpayment of just debts.  On 16 December 1985, it was approved.  The applicant did not appeal the bar to reenlistment.

6.  On 15 January 1986, the applicant’s commander recommended that he be discharged in accordance with Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 14-2b, because his medical condition did not cause him to get two driving-while-drunk charges in less than 12 months.

7.  The applicant's record does not contain a complete copy of his separation packet or the document which shows he was notified and acknowledged his pending discharge.

8.  The applicant's record contains a memorandum, subject:  Determination Relevant to Administrative or Medical Disposition, dated 13 January 1986, which states, in pertinent part, that the applicant's medical condition was not the cause of his misconduct.

9.  On 4 April 1986, the approval authority determined that justification did not exist to waive the limitations of Army Regulation 635-40, paragraph 4-3, and determined that the MEBD results would not be referred to a PEB.  The separation authority then approved the administrative separation action in accordance with Army Regulation 635-200, chapter 14.

10.  On 17 April 1986, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14 -12b, because of misconduct with an under other than honorable conditions discharge.  The DD Form 214 he was issued at the time confirms he completed a total of 5 years, 9 months, and 3 days of creditable active service.

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

12.  The applicant submitted a certificate which shows he completed the VA's Substance Abuse Treatment Program and a Carl Vinson VA Medical Center certificate awarding him the Environmental Services Award of Excellence for outstanding professionalism while assigned to the Environmental Services Division of the Carl Vinson VA Hospital.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth the responsibilities and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 4 states, in pertinent part, that an enlisted member may not be referred for, or continue, physical disability processing under any regulatory provision which authorized a characterization of service of under other than honorable conditions.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

15.  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 evidence of record shows that the applicant was discharged under other than honorable conditions because of misconduct.  Contrary to the contention that he had only one indiscretion, his record shows he was punished three times under Article 15, UCMJ and he compounded his misconduct by failing to pay just debts.  Therefore, his service does not warrant an upgrade of his discharge to a general discharge.

2.  The applicant's contentions regarding his post-service achievements and conduct were 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.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090002618



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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