IN THE CASE OF:	

		BOARD DATE:	3 September 2009    

		DOCKET NUMBER:  AR20090006384 


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 to an honorable discharge.

2.  The applicant states, in effect, that after the applicant's reassignment to Germany his wife created financial problems for him in Texas, his brother almost died in a motorcycle accident, and his grandmother died.  The applicant also states he requested a hardship transfer and emergency leave to resolve his issues but both were denied.  He further states that he did not know who to ask for assistance and started drinking which was his downfall.  The applicant concludes that he now realizes there were many options for him to choose instead of alcohol.

3.  The applicant provides a DD Form 214 (Report of Separation from Active Duty), dated 2 February 1979, 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 that he enlisted in the Regular Army and entered active duty on 23 August 1976.  He was trained in and awarded military occupational specialty (MOS) 19D (Cavalry Scout).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 18 (Appointments and Reductions), that he was promoted to specialist four/E4 (SP4) on 1 February 1978 and that this was the highest rank he attained while serving on active duty.  It also shows that he was reduced to private first class/E-3 (PFC) on 4 February 1981, private two/E-2 (PV2) on 18 February 1981, and private/E-1 (PV1) on 22 April 1981.  Item 9 (Awards, Decorations & Campaigns) shows that during his active duty tenure he earned the Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant's record contains two letters of commendation for duty-related accomplishments.  However, the record documents no acts of valor or significant achievement.

5.  On 28 July 1978, the applicant accepted non-judicial punishment (NJP) for willfully disobeying an order received from a superior noncommissioned officer on 17 July 1978.  As punishment for this offense the applicant received a reduction to PFC (suspended until 1 October 1978) and extra duty for 14 days.

6.  On 26 February 1979, the applicant was honorably discharged for the purpose of immediately reenlisting on 27 February 1979.

7.  On 2 January 1981, the applicant accepted NJP for being drunk and disorderly on 17 December 1980.  As punishment for this offense the applicant received a reduction to PFC (suspended until 2 May 1981), forfeiture of $100.00, extra duty for 14 days, and restriction for 14 days.

8.  On 18 February 1981, the applicant accepted NJP for willfully disobeying an order received from a superior noncommissioned officer, being incapacitated for the proper performance of his duties, and failure to go to his appointed place of duty on 5 February 1981.  As punishment for this offense the applicant received a reduction to PV2, extra duty for 30 days, and restriction for 30 days.

9.  The applicant's record documents several instances where he rendered personal checks which were ultimately dishonored by his banking institution and where he failed to pay his just debts during the period October 1980 through February 1981.

10.  On 14 April 1981, the applicant was barred from reenlistment because of a record of NJP and non-payment of just debts.

11.  On 22 April 1981, the applicant accepted NJP for wrongfully having in his possession some amount of marijuana on 16 March 1981 and failure to go to his appointed place of duty on 6 April 1981.  As punishment for this offense the applicant received reduction to PVT, extra duty for 30 days, and restriction for 30 days.

12.  On 24 April 1981, the company commander notified the applicant of his intent to initiate separation action to discharge him under the provisions of Army Regulation 635-200, paragraph 14-33b(1) for misconduct based on frequent incidents of a discreditable nature with civil or military authorities.  The company commander also advised the applicant of his rights.

13.  On 24 April 1981, the applicant consulted with legal counsel.  The applicant acknowledged with his signature that he had been advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  The applicant waived consideration of his case by a board of officers and elected not to submit statements in his own
behalf.  The applicant also indicated that he understood he may expect to encounter substantial prejudice in civilian life if he was issued a general discharge under honorable conditions; that, as a result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all Veterans Administration (now known as the Department of Veterans Affairs (VA)) benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  The applicant’s counsel, a commissioned officer serving in the Judge Advocate General's Corps, also signed this document.

14.  On 24 April 1981, the company commander reviewed the applicant’s statement of options and choices pertaining to the rights available to him.  The company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct based on frequent incidents of a discreditable nature with civil or military authorities.  In his recommendation, the company commander stated that the applicant neglected all efforts to help him, participated in some act of misconduct constantly, was counseled by his chain of command and was placed in a drug and alcohol control program but all efforts and rehabilitative measures failed.
15.  On 24 April 1981, the battalion commander concurred with the company commander’s recommendation and requested that the separation approval authority waive a rehabilitative transfer.

16.  On 13 May 1981, the 2nd Armored Division Commander waived rehabilitative reassignment of the applicant, approved discharge of the applicant under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations), with a Separation Program Designator (SPD) Code of “JKA,” and directed that the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.

17.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his separation (26 May 1981) confirms that he was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 14, and issued SPD Code “JKA.”  At the time of his discharge the applicant had completed 2 years and 3 months net active service this period and 2 years, 6 months, and 4 days prior active service.

18.  The applicant’s military service records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), dated 10 September 1981, that shows he requested upgrade of his under other than honorable conditions discharge to an honorable discharge.  On 5 May 1982, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence, determined that the applicant’s discharge was proper and equitable and denied his appeal.  The applicant was notified of the ADRB’s decision on 1 June 1982.

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if 


such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

20.  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.

21.  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's contention that his under other than honorable conditions discharge should be upgraded to an honorable discharge was carefully considered.  However, while the circumstances provided by the applicant as the basis for his alcohol and behavior problems are unfortunate, they fail to provide a sufficient basis to warrant the upgrade of his discharge.

2.  Further, the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

3.  The applicant’s record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  It was not sufficiently meritorious to warrant an honorable discharge.

4.  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.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090006384



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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