IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090012325 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that he did not have the best childhood growing up.  He states that he did not finish high school, his parents divorced, and neither he nor his father could find work.  He states that he convinced his father to sign the papers for him to join the Army as a minor, and once he joined, his problems with the Army centered around alcohol.  He believes that the Army is responsible for his alcoholism and that in today’s Army he would have been kept away from drinking until age twenty one.  He also states that he should not continue to be punished for the illegal distribution of alcohol to minors that was allowed to happen in the Army that caused him to get into trouble.  He states that if the alcohol laws of the time had been enforced, his actions would have been very different.  He also states that today this could not happen.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), and an undated self-authored letter.

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 military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP).  On 4 December 1980, he was discharged from the USAR DEP and on 5 December 1980, he enlisted in the 
Regular Army (RA), in pay grade E-1, for a period of 3 years.  He completed basic and advanced individual training and he was awarded military occupational specialty (MOS) 13E (Cannon Fire Direction Specialist).

3.  On 17 February 1981, under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), the applicant received nonjudicial punishment (NJP) for failing to obey a lawful order given to him by his superior noncommissioned officer “to not bring alcoholic beverages into the barracks.”  His imposed punishment was a forfeiture of $116.00 pay and correctional custody for 7 days (suspended for 90 days).

4.  On 23 June 1981, the applicant received NJP for being derelict in the performance of his duties in that he failed to stay awake as it was his duty to do so.  His imposed punishment was a forfeiture of $130.00 for one month and 14 days extra duty to commence on 15 July 1981.

5.  On 28 July 1982, the applicant’s duty status changed from present for duty to absent without leave (AWOL).

6.  On 2 August 1982, the applicant was apprehended by the Austrian Border Patrol while in-country without authorization and confined by civilian authorities.

7.  On 6 August 1982, the applicant was released to the Military Police and his status was changed back to “Present for Duty.”  He was tried by a summary court- martial at Sheridan Kaserne, Augsburg, Germany for being AWOL.  He was found guilty as charged and was sentenced to confinement at hard labor for 30 days, reduction to private (PV1)/E-1, and forfeiture of $150.00 for one month.

8.  On 12 August 1982, the sentence was approved and executed.  The applicant was to be confined at the United States Confinement Facility, Mannheim, Germany or elsewhere as competent authority may direct.  The applicant was released from confinement on 3 September 1982.
9.  On 18 October 1982, the applicant received NJP for being drunk and disorderly in command and in uniform in a public place.  His imposed punishment was restriction and extra duty for 7 days and a forfeiture of $100.00 per month for one month.

10.  On 20 October 1982, the applicant’s unit commander notified him that he was initiating action which may result in his separation from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12b, for misconduct.  He also advised the applicant of his rights to consult with legal counsel, to submit written statements in his own behalf, to obtain copies of documents that would be sent to the separation authority supporting the proposed separation, to waive these rights in writing, and to withdraw his waiver at any time prior to the date the separation authority directs or approve his separation.  The applicant acknowledged receipt of the unit commander’s notification on the same day.

11.  On 22 October 1982, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, and its effects and the rights available to him, he elected not to submit statements in his own behalf. The applicant also acknowledged his understanding that if he were issued a general under honorable conditions discharge, he could expect to encounter substantial prejudice in civilian life.

12.  The applicant’s unit commander subsequently recommended that he be separated from the Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct because he developed a pattern of misconduct involving civil or military authorities.

13.  On 4 November 1982, the separation authority approved the chain of command's recommendation for discharge.  He directed the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14 and that he receive a General Discharge Certificate.

14.  On 10 November 1982, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 14-33b(1) by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities.

15.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes 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 will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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 regulation.

17.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request was carefully considered; however, there is no evidence and the applicant has not provided any evidence that shows the discharge he received was inequitable or unjust.

2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant’s record reveals a disciplinary history that includes his acceptance of NJP on three separate occasions and a summary court-martial for being AWOL.  This record of misconduct clearly diminished the quality of his service below that meriting a fully-honorable discharge.

4.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s requested relief.

5.  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)                                         AR20090012325



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ABCMR Record of Proceedings (cont)                                         AR20090012325



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