BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090007929 


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 general discharge under honorable conditions be upgraded to an honorable discharge (HD).

2.  The applicant states, “I was unjustly led to sign discharge papers that stated alcohol abuse…”  He states he was never an alcohol abuser.  He adds he was young and made youthful mistakes, but he served honorably.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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.  With prior Army National Guard service, the applicant enlisted in the Regular Army for 3 years on 22 July 1971.  He was 18 years old at the time.

3.  The applicant was trained at Fort Ord, CA and Fort Lee, VA and was awarded military occupational specialty (MOS) 94B (Cook).  He was assigned to Fort Devens, MA.

4.  The applicant’s records contain the following records of nonjudicial and judicial punishments:

	a.  On 27 February 1973, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for without authority failing to go to his appointed place of duty, to wit:  Army Education Center, for which he received 14 days of restriction and extra duty.

	b.  On 19 March 1973, he received NJP for without authority failing to go to his appointed place of duty, to wit:  the Army Education Center, for which he received forfeiture of $30 per month for 1 month, and 14 days of restriction.

	c.  On 26 July 1973, he was adjudged guilty at a Summary Court-Martial for being disrespectful towards a superior commissioned officer and for disobeying a lawful order of a superior commissioned officer, for which he received a reduction to private (PV2)/E-2, and 30 days of restriction.

5.  The applicant’s administrative separation packet is incomplete; however, he was referred to the Community Mental Health Center for evaluation on 30 August 1973.  He was determined to be mentally responsible and capable of participating in an administrative separation hearing.

6.  The Mental Health report completed on the applicant stated he had an inability to adjust to the military, that he refused to participate in the General Educational Development program, that he refused alcohol counseling, that he had poor personal hygiene habits.  He exhibited an inadequate personality.  It was recommended he be separated from the Army for unsuitability under chapter 13, Army Regulation 635-200.

7.  On 3 October 1973, the applicant was discharged under honorable conditions. He had completed 2 years, 2 months, and 12 days of creditable service.  He was given a Separation Program Number (SPN) of 264 (unsuitability, character and behavior disorder) and 289 (chronic alcoholism).



8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation then in effect established policy and prescribed procedures for separating members for unsuitability.  When separation for unsuitability was warranted, a general discharge under honorable conditions was normally considered appropriate.

9.  Army Regulation 635-200 also provides, in paragraph 3-7a, that an HD 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.

10.  There is no record the applicant petitioned the Army Discharge Review Board within that board’s 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade.

2.  The applicant enlisted at age 18 after a short stint in the Army National Guard. There is no indication he was any less mature than other 18-year old Soldiers who successfully completed their service.

3.  The applicant failed to adjust to the military environment and became a disciplinary problem, receiving two NJP’s and one Summary Court-Martial conviction.  He was provided the opportunity to complete the General Educational Development program, but his lack of discipline did not permit him to take advantage of the program.

4.  The Community Mental Health Center found the applicant to be alcohol dependent and to have character and behavior disorders.  He was recommended for discharge as unsuitable for military service.

5.  The applicant’s complete discharge packet is unavailable; however, based upon his assigned SPN codes, he was discharged by reason of character and behavior disorder and alcoholism.  His general discharge was, and is, appropriate.



6.  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)                                         AR20090007929



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ABCMR Record of Proceedings (cont)                                         AR20090007929



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