IN THE CASE OF:	  

		BOARD DATE:	      10 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007983 


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 an upgrade of his under honorable conditions discharge to fully honorable.

2.  The applicant states that he was found unfit for continued service by reason of misconduct, specifically his failure to follow orders and drug dependency.  He adds that he reviewed the Department of Defense Instruction (DODI) 1332.14, dated 28 August 2008, and determined that his separation was unjust because of the lack of formal counseling concerning his deficiencies and the opportunity to overcome such deficiencies as reflected by appropriate counseling.  He concludes that the only counseling he received was concerning punishment and that this was followed by an early separation under honorable conditions. 

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 records show he enlisted in the Regular Army for a period of 6 years on 11 October 1972.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11E (Armor Crewmember).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4. 

3.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 20 March 1974, for wrongfully, unlawfully, and without authority wearing upon his uniform the insignia of SP4 on or about 16 May 1974.  His punishment consisted of a forfeiture of $70.00 pay per month for 1 month, a reduction to private (PV2)/E-2 (suspended for 60 days), 14 days of extra duty, and 14 days of restriction; and 

	b.  on 1 April 1975, for violating a lawful written order by driving a vehicle on a military installation while his driving privileges were revoked, on or about 20 March 1975.  His punishment consisted of a reduction to PV2/E-2 (suspended for 90 days), a forfeiture of $50.00 pay for 1 month, and 14 days of extra duty.

4.  On 8 May 1973, the applicant pleaded guilty at a Special Court-Martial to one specification of failing to obey a lawful order by having his privately owned vehicle at the Hohenfels Training Area in Germany on or about 4 February 1973 and one specification of wrongfully possessing 6.5 ounces, more or less, of marijuana on or about 17 February 1973.  The Court sentenced him to a reduction to private first class (PFC)/E-3 and 30 days of extra duty.  The sentence was adjudged on 8 May 1973 and approved on 15 June 1973.

5.  The applicant's records contain a statement, dated 27 January 1975 from the Halfway House Program Counselor in which the counselor states that the applicant was admitted to the drug rehabilitative program on 24 December 1974.  He remained there for 11 days and was released after expressing a desire to decline treatment.  He then entered the outpatient program and was initially cooperative and prompt in showing up for counseling.  However, he again showed a desire to be dropped from the program.  He has shown no motivation towards rehabilitation concerning his drug problem. 


6.  The applicant's records contain a DA Form 2496 (Disposition Form), dated 6 February 1975 that shows the applicant was counseled on 13 separate occasions, from 30 August 1974 to 31 January 1975, by various members of his chain of command, for miscellaneous infractions, including reckless driving, disobeying orders, disobeying regulations, poor performance, poor attitude, poor military appearance and/or bearing, absence from formation, and failure to follow instructions. 

7.  On 13 February 1975 (erroneously shown as 13 March 1975), the applicant’s immediate commander notified the applicant of his intent to initiate elimination from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of unfitness.  Specifically, the immediate commander cited the applicant's self-admission of drug dependency, his disregard for authority, inability to accomplish tasks without constant supervision, and impeded judgment, integrity, and responsiveness.  The immediate commander further stated that the applicant was reassigned to his unit from a sister unit in the squadron for misconduct as a rehabilitative transfer and that he was provided with multiple counseling as well as enrolment into a drug program, counseling by the chaplain, and mental hygiene counseling.  

8.  On 11 March 1975, the applicant acknowledged receipt of the notification of his pending separation action.  He was advised by counsel of the basis for the contemplated action to separate him for unfitness under the provisions of Army Regulation 635-200.  He further requested consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and elected not to submit a statement.  The applicant further indicated that he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that in the event of the issuance of an undesirable discharge, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and may encounter substantial prejudice in civilian life.

9.  On 13 March 1975 (erroneously shown as 11 March 1975), the applicant’s immediate commander initiated elimination action against the applicant under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness.

10.  On 13 March 1975, the applicant's intermediate commander recommended approval of the applicant's discharge.

11.  On 28 March 1975, the separation authority waived the counseling and rehabilitative requirements but ordered a board of officer convened to determine whether the applicant should be separated for unfitness.

12.  On 15 April 1975, a board of officers convened at Fort Riley, KS, to consider whether the applicant should be eliminated from the service with the applicant and his appointed military counsel present.  The board recommended the applicant be separated from the Army under the provisions of chapter 13 of Army Regulation 635-200 by reason of unfitness.

13.  On 29 April 1975, the convening/separation authority approved the board of officer’s findings and recommendations and directed the applicant be discharged under the provisions of paragraph 13-5a of Army Regulation 635-200 by reason of unfitness and that he be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 16 may 1975.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 4 years, 4 months, and 9 days of creditable active military service.

14.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations. 

15.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

16.  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.

17.  AR 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.
18.  DODI 1332.14 establishes DOD policy, responsibilities, and procedures governing administrative separation of enlisted personnel from the Military Services.  It states, in pertinent part, that the Secretaries of the Military Departments shall implement Service policies, standards, and procedures consistent with this issuance and ensure they are administered in a manner that provides conformity and clarity of separation policy to the extent practicable in a system based on command discretion; ensure enlisted separation policies, standards, and procedures are applied consistently; ensure fact-finding inquiries are conducted properly; ensure abuses of authority do not occur; ensure that failure to follow the provisions contained in this issuance results in appropriate corrective action; establish processing time goals for the types of administrative separations authorized by this Instruction and that such goals shall be designed to effect the efficient separation of enlisted members from the Armed Forces and shall be measured from the date of notification to the date of separation. Failure to process an administrative separation within the prescribed goals shall not create a bar to separation or characterization.  

19.  Chapter 7 of the DODI provides for separation for unsatisfactory performance.  It states that a service member may be separated when it is determined under the guidance in that the member is unqualified for further military service by reason of unsatisfactory performance.  This reason shall not be used if the Service member is in entry-level status.  Counseling and rehabilitation requirements are of particular importance to this reason for separation.  Separation processing may not be initiated until the service member has been formally counseled concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records.  A Service member should not be separated when unsatisfactory performance is the sole reason unless appropriate efforts at rehabilitation have been made under standards prescribed by the Secretary concerned.  The service shall be characterized as honorable or general (under honorable conditions).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded.

2.  The applicant's records reveal a history of misconduct which includes one instance of a court-martial and two instances of NJP.  He was provided with multiple opportunities for rehabilitation, including 13 separate counseling sessions by various members of his chain of command; reassignment from one unit to another within the same squadron, and enrollment in a drug rehabilitation program.  Accordingly, his chain of command initiated separation action against him.  There is no indication that the applicant lacked any counseling or rehabilitation. 

3.  The evidence of record shows the applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.  

4.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.  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 did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant's requested relief in this 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.




      _______ _   _XXX______   ___
               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)                                         AR20090007983





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ABCMR Record of Proceedings (cont)                                         AR20090007983



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