BOARD DATE:	  26 August 2009

		DOCKET NUMBER:  AR20090005563 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, that he was young and didn't care about anything at the time.  He adds that he wants the upgrade for a better way of life. He has been living from pay check to pay check since 1986.

3.  In self-authored statements to the Board, the applicant added, in pertinent part, that drugs were a part of his problem and he now knows that it was true.  He couldn't control himself because of the way he was living.  He states that it has been a long road from that time.  He started drinking and smoking when he entered the Army.  He is not blaming the Army for his problems.  Some problems were his alone because no one told him to act the way he did back in 1984.  He just asks for a fair chance at life and that is what he wanted in the first place.

4.  In support of his request, the applicant provided three hand-written, self-authored statements to the Board.

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 Army Reserve, Delayed Entry Program, on 8 July 1982.  He enlisted in the Regular Army on 1 September 1982.  On the date of his enlistment in the Regular Army, he was 21 years, 2 months and 16 days (Date of birth:  16 June 1961) of age.  Following completion of his basic combat and advanced individual training at Fort Dix, New Jersey, he was awarded the primary military occupational specialty 94B (Cook).

3.  The applicant was assigned for duty at Fort Riley, Kansas, on 10 January 1983.  He was promoted to the rank and pay grade Private First Class, E-3, 1 September 1983.  This would be the highest rank and pay grade the applicant would achieve while he served on active duty.

4.  On 18 April 1984, the applicant received a special court-martial.  He was found guilty of unlawfully striking another Soldier on 31 January 1984.  The applicant was sentenced to confinement at hard labor for two months, to forfeit $200.00 pay per month for two months, and to be reduced to the rank and pay grade of Private, E-1.  The sentence was adjudged on 18 April 1984.

5.  On 15  June 1984, the Office of the Staff Judge Advocate, Headquarters, 1st Infantry Division (Mechanized) and For Riley, indicated that the record of trial had been examined and the findings and sentence, as approved by the convening authority, were correct in law and fact.

6.  On 12 February 1985, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using Marijuana, a controlled substance, on 27 December 1984.  The imposed punishment was a forfeiture of $144.00 and restriction to the company area for 14 days and to perform extra duties for 14 days.

7.  On 4 March 1985, the applicant underwent a mental status evaluation.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was unremarkable, his thinking process was clear, and his thought content was normal.  The evaluating physician found him to be mentally responsible, considered to have the mental capacity to understand and participate in separation proceedings, and to meet the retention standards of AR 40-501 (Standard of Medical Fitness), Chapter 3.
8.  On 18 March 1985, the applicant’s unit commander notified him he was recommending that he be discharged from the Army under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14, paragraph 14-12c, for misconduct.  The applicant was advised he had the right to consult with counsel or consult with civilian counsel, at his own expense; to present his case and make a personal appearance before a board of officers; to submit a statement in his own behalf; and to waive his rights.  The applicant was provided a copy of the unit commander's recommendation for his separation for his consultation with an officer of the Judge Advocate General's Corps.  The applicant acknowledged receipt of the notification on the same date.

9.  The applicant consulted with counsel and on 18 March 1985 he requested consideration of his case and a personal appearance before an administrative separation board.  The applicant elected not to submit a statement in his own behalf.  The applicant further requested that he be represented by appointed counsel.

10.  On 18 March 1985, the applicant's unit commander recommended that he be separated under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, prior to the expiration of his term of service.  The reason for his proposed action, the commander submitted, was that the applicant had tested positive during a random urinalysis which had been conducted on 27 December 1984 and on 17 January 1985.

11.  On 20 March 1985, the applicant's battalion commander recommended approval for the applicant's separation.

12.  On 22 March 1985, the applicant's brigade-level commander, the Commander, 1st Infantry Division Support Command, recommended approval for the applicant's separation.

13.  On 2 April 1985, the Acting Commander, 1st Infantry Division (Mechanized) and Fort Riley, directed that the applicant appear before a board of officers to determine whether he should be separated for misconduct.

14.  On 10 April 1985, the applicant failed to report to his duty station after he called the dining facility manager and told him he was taking his car to the garage to have the alternator repaired.  The dining facility manager told the applicant to drop his car off at the garage and to take the post bus to work.  The applicant did not report to his place of duty as instructed.


15.  On 11 April 1985, the applicant failed to report to his appointed place of duty and he made no attempt to contact his shift leader or the dining facility manager.

16.  The applicant appeared with counsel before an administrative separation board on 1 May 1985.  After having carefully considered the evidence, the board found that there had been a pattern of misconduct in accordance with Army Regulation 635-200, paragraph 14-12c and further found that the applicant was undesirable for further retention in the military.  The board recommended that the applicant be discharged from the service with issuance of an under other than honorable conditions discharge.  The findings and recommendations of the board were approved on 20 May 1985.

17.  On 20 May 1985, the Commander, 1st Infantry Division (Mechanized) and Fort Riley, directed that the applicant be discharged under the provision of Army Regulation 635-200, paragraph 14-12c.  He directed that the applicant be issued an under other than honorable conditions discharge.

18.  The applicant was discharged with an under other than honorable conditions discharge in the rank and pay grade of Private, E-1, on 23 May 1985, under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c.  On the date of his discharge, the applicant had completed 2 years, 8 months, and 23 days net active service with time lost for the period from 18 April 1984 through 17 June 1984 due to confinement.

19.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

21.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

22.  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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  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 this requirement. 

2.  The evidence shows that the applicant had established a pattern of misconduct.  In his relatively short period of service, he had received a special court-martial for violence against a member of the opposite sex and had spent time in confinement as part of his sentence.  The applicant had also tested positive twice for the use of marijuana.  After the commander had decided to initiate a separation action against him for these violations, the applicant, it appears, intentionally did not report to his appointed place of duty after he was given instructions by the dining facility manager to do so.  In one of the instances, on the following day, the applicant didn't even so much as call his shift leader or the dining facility manager, to report that he would be absent or the reason therefore and again absented himself from his appointed place of duty.

3.  The applicant's contention that he was young and didn't care has been taken into consideration; however, the applicant was over 21 years of age at the time he enlisted in the Regular Army.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.

4.  The applicant contends that his discharge under other than honorable conditions has had a negative impact on his way of life in that he has been living from pay check to pay check since 1986.  The ABCMR does not amend nor does it correct military records solely for the purpose of making applicants eligible for better employment, employment benefits, or veteran's benefits.

5.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the type of discharge is also under other than honorable conditions. It is believed that the reason for the applicant's discharge and the characterization of his service were both proper and equitable.
6.  The overall quality of the applicant’s service was considered.  Based on his 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 also renders his service unsatisfactory.  The record also contains no documentary evidence of acts of valor or achievement which would warrant special recognition and an upgrade of his under other than honorable conditions discharge; therefore, the applicant is not entitled to an upgrade of his discharge.

7.  In view of all the evidence in this case, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge to either general or honorable.

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)                                         AR20090005563





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ABCMR Record of Proceedings (cont)                                         AR20090005563



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