IN THE CASE OF:	  

		BOARD DATE:	  24  November 2009

		DOCKET NUMBER:  AR20090010929 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states that he believes he was discharged unjustly and no treatment was offered for his alcoholism.

3.  The applicant provides no documentary evidence in support of his 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 enlisted in the Regular Army on 6 July 1982 for a period of 4 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 63T (improved tow vehicle/infantry fighting vehicle/cavalry fighting vehicle system mechanic).

3.  On 23 March 1983, nonjudicial punishment was imposed against the applicant for operating a vehicle while drunk.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  On 16 November 1983, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty, for being absent without leave (AWOL) on 27 October 1983, and for disobeying a lawful command.  His punishment consisted of a reduction to pay grade E-1 and correctional custody for 7 days.

5.  Between 11 June 1983 and 23 December 1983, the applicant was counseled on numerous occasions for various infractions which included leaving his machine gun unsecure, substandard performance, failures to repair, and being AWOL from his place of duty on 21 December 1983.

6.  On 8 February 1984, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12a, for misconduct (minor disciplinary infractions).  His unit commander cited that the applicant had a history of poor attitude, poor job performance, and periods of AWOL.

7.  On 17 February 1984, the applicant waived his rights and elected not to submit a statement in his own behalf.

8.  On 6 March 1984, the separation authority approved the recommendation for discharge and directed the issuance of a discharge under other than honorable conditions.

9.  Accordingly, the applicant was discharged under other than honorable conditions on 15 March 1984 under the provisions of Army Regulation 635-200, paragraph 14-12a, for misconduct (minor disciplinary infractions).  He had served a total of 1 year, 8 months, and 9 days of creditable active service with 1 day of lost time due to AWOL.

10.  There is no evidence of record which shows the applicant was diagnosed with alcohol abuse or dependency prior to his discharge.

11.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 4, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

13.  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.

14.  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.  Although the applicant contends that he had an alcohol problem while in the Army, there is no evidence of record which shows that he was diagnosed with alcohol abuse or dependency prior to his discharge or that he referred himself for treatment for alcohol problems.

2.  The applicant's record of service included numerous adverse counseling statements, two nonjudicial punishments, and 1 day of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the 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.



      ____________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)                                         AR20090010929



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ABCMR Record of Proceedings (cont)                                         AR20090010929



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