IN THE CASE OF:	

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090012178 


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 other than honorable conditions discharge.

2.  The applicant states that he served his country honorably but had a couple of bad situations.  He adds that he was told his discharge would be upgraded to honorable after a number of years.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 14 November 1979; and an undated self-authored statement, 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 3 years on 7 July 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  The applicant’s record further shows he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 14 May 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for unlawfully carrying a concealed weapon on or about 20 April 1979 and wrongfully possessing one ounce, more or less, of marijuana on or about 24 April 1979.  His punishment consisted of a reduction to private/E-2, a forfeiture of $209.00 pay for 2 months (suspended for 120 days), and confinement in the Fort Polk, LA, Correctional Custody Facility for 21 days.

5.  The applicant's records reveal a history of counseling statements by various members of his chain of command for several serious infractions to include driving while intoxicated (DWI) on two occasions and suspicion of larceny.

6.  On 12 September 1979, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of misconduct.  The immediate commander remarked that the applicant had had two instances of DWI, one instance of carrying an unregistered and concealed weapon, one instance of possessing marijuana, that he had been investigated for larceny and that he had had a number of traffic citations.  He had clearly established a pattern of misconduct and/or irresponsibility that could not be tolerated. 

7.  On 9 October 1979, the applicant acknowledged receipt of the separation notification, consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and the type of discharge he could receive and its effect on further enlistment or reenlistment.  The applicant acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further waived consideration of his case by a board of officer, waived a personal appearance before a board of officers, and submitted a statement on his own behalf wherein he indicated that what he did was bad but none of it was related to his work performance and appealed for a fair judgment. 

8.  On an unknown date in September or October 1979, the applicant’s immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct.  He remarked that the applicant's offenses were of an extreme and serious nature and that his repeated cases indicated his failure to show an effort to improve.  His pattern of misconduct was substantial enough to affect immediate elimination.

9.  On 15 October 1979, the applicant’s intermediate commander recommended approval of the applicant’s discharge.

10.  On 1 November 1979, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate and that he be reduced to the lowest enlisted grade.  On 14 November 1979, the applicant was accordingly discharged.  The DD Form 214 he was issued confirms he had completed a total of 2 years, 4 months, and 8 days of creditable active military service.

11.  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.

12.  The applicant submitted an undated self-authored statement in which he indicated that he was an alcoholic and drug addict when he entered the military.  His street ways continued and he was ultimately busted for drugs and a weapon. He also stated that in 1992 his life charged when he got married and ultimately gave up alcohol and drugs, attended college, and became a productive member of the community.  He believes he did a "damn good job" of turning his life around. 

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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 the regulation.

14.  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.

15.  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.

16.  Army Regulation 635-200, in pertinent part, states the quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline.  Characterization may be based on conduct in the civilian community.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence of record shows the applicant committed a series of serious offenses ranging from traffic violations to DWI and possession of drugs.  Accordingly, his immediate commander initiated separation action against him and he was accordingly discharged.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, the applicant's service clearly does not merit an upgrade to his discharge.

3.  The passage of time and the applicant's efforts in turning his life around over the past 17 years were considered.  However, the Army has never had a policy where a member's character of service is upgraded due to the passage of time.  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.  
4.  The governing regulation states that the quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge or an honorable discharge.

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)                                         AR20090012178



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ABCMR Record of Proceedings (cont)                                         AR20090012178



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