IN THE CASE OF:	

		BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090012072 


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 discharge to honorable.

2.  The applicant states that he feels the steps he has taken on his own to better his life are really working.  He has completed a 21-day inpatient program at the Department of Veterans Affairs (DVA) clinic and another program at a local facility in Kentucky.  He is currently living in a recovery house where he attends five meetings per week and by the time this Board receives his request, he would have been clean and sober for 10 months.  He feels he has taken the right path to better his life.

3.  The applicant provides a copy of a DVA Residential Substance Dependence Treatment letter, dated 13 February 2009, 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 record shows he enlisted in the Regular Army for a period of 3 years on 22 March 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  He also executed two 3-year reenlistments on 29 September 1978 and 28 August 1981.  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  The applicant's record shows he served in Korea from on or about 6 January 1981 to on or about 5 January 1982.  His record further shows he was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Air Assault Badge, and the Army Good Conduct Medal.

4.  The applicant's record reveals a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice as follows:

	a.  on 20 June 1979, for being absent without leave (AWOL) during the period on or about 18 June 1979 through on or about 19 June 1979.  His punishment consisted of a reduction to private first class (PFC) (suspended until 21 July 1979), a forfeiture of $75.00 pay, and 14 days of extra duty;

	b.  on 16 July 1982, for failing to go at the time prescribed to his appointed place of duty on three separate occasions on or about 2, 3, and 9 July 1982.  His punishment consisted of a forfeiture of $100.00 pay and 14 days of extra duty;

	c.  on 3 August 1982, for leaving his appointed place of duty without authority on or about 19 July 1982.  His punishment consisted of a reduction to PFC/E-3 (suspended until 3 November 1982), a forfeiture of $171.00 pay, 14 days of extra duty, and 14 days of restriction;

	d.  on 23 November 1982, for failing to go at the time prescribed to his appointed place of duty on or about 17 November 1982 and disobeying a lawful order on or about 17 November 1982.  His punishment consisted of a reduction to PFC/E-3, a forfeiture of $177.00 pay, and 7 days of confinement in the Correctional Custody Facility.  He appealed his punishment on 23 November 1982; however, his appeal was denied on 23 December 1982; and

	e.  on 4 March 1983, for being AWOL during the period on or about 4 January 1983 through on or about 4 February 1983.  His punishment consisted of a reduction to private/E-1, 29 days of restriction, and 29 days of extra duty.

5.  On 22 May 1983, the applicant departed his unit in an AWOL status.  He was apprehended by military authorities on 17 June 1983 and was held in pretrial confinement until 27 June 1983.

6.  On 30 June 1983, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for a pattern of misconduct.  Specifically, the immediate commander cited the applicant's discreditable involvement with civil and military authorities and his conduct which was prejudicial to good order and discipline.

7.  On 5 July 1983, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and elected not to submit a statement on his own behalf.

8.  The applicant further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws.

9.  On 6 July 1983, the applicant's immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 for a pattern of misconduct.

10.  On 7 and 8 July 1983, the applicant's intermediate and senior commanders recommended approval of the applicant's discharge.

11.  On 27 July 1983, the separation authority approved the applicant's discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of patterns of misconduct and directed the applicant be furnished an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 5 August 1983.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged on 5 August 1983 by reason of misconduct with an under other than honorable conditions character of service.  This form further confirms he completed a total of 7 years, 2 months, and 16 days of creditable military service.

12.  The applicant submitted a copy of a DVA Residential Substance Dependence Treatment letter, dated 13 February 2009, which shows the applicant has completed the residential phase of a substance dependency program.

13.  There is no indication in the applicant's records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15 year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such were merited by the Soldier's overall record.

15.  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.

16.  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 contends that his discharge should be upgraded.

2.  The evidence of record shows the applicant had a history of serious disciplinary problems including several instances of AWOL.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He was accordingly separated under the provisions of chapter 14 of Army Regulation 635-200 due to his misconduct.  Absent the pattern of misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct.

3.  The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Notwithstanding the applicant's positive steps in improving his life, 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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20090012072



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ABCMR Record of Proceedings (cont)                                         AR20090012072



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