IN THE CASE OF:	  

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090012697 


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, in effect, upgrade of his undesirable discharge to an honorable discharge due to medical reasons.

2.  The applicant states that for 20 years between 1966 and 1988 he had been an active alcoholic.  All of his misappropriations and behavior while in the service were due to his excessive drinking.  He further states he has not had a drink since 26 June 1986.

3.  The applicant provides no additional documentation 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.  On 20 March 1967, the applicant enlisted in the Regular Army (RA).  He completed basic combat training at Fort Bragg, NC.

3.  On 2 June 1967, the applicant was assigned to Fort Monmouth, NJ for advanced individual training (AIT) in military occupational specialty (MOS) 31K (General Cryptographic Repairman).

4.  On 26 July 1967, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 21 July 1967 to 24 July 1967.  His punishment included a forfeiture of $23.00 pay per month for 1 month.

5.  On 1 August 1967, the applicant received NJP for failing to go at the time prescribed to his appointed place of duty on 25 July 1967.  His punishment included a forfeiture of $23.00 pay per month for 1 month and 14 days of restriction and extra duty.

6.  On 22 September 1967, the applicant was reassigned to Fort Dix, NJ, where he was enrolled in AIT for training in MOS 11B (Infantryman).

7.  On 2 November 1967, the applicant was convicted by a special court-martial of violation of Article 86, UCMJ for being AWOL from 25 September 1967 to
3 October 1967 and from 14 to 15 October 1967; and for violation of Article 134, UCMJ for breaking restriction on 14 October 1967.  His sentence consisted of a forfeiture of $64.00 pay per month for 4 months and confinement at hard labor for 4 months.  He was confined for 49 days.

8.  On 5 February 1968, the applicant’s unit commander initiated separation under the provisions of Army Regulation 635-212 (Personnel Separations –Discharge - Unfitness and Unsuitability) for unfitness due to frequent involvement of a discreditable nature with civil or military authority.  The commander stated that during the applicant's time in the service he had displayed an inability to learn and a lack of general adaptability.  His record of civil and military offenses showed an immature and undisciplined behavior and a complete disregard for both military and civil authority.  Rehabilitation attempts proved unsuccessful.

9.  On 16 March 1968, the applicant was convicted by a special court-martial of violation of Article 113, UCMJ, for leaving his guard post without proper authority; and for violation of Article 121, UCMJ, for wrongful appropriation of a government vehicle.  His sentence consisted of a forfeiture of $68.00 pay per month for 
6 months and confinement at hard labor for 6 months.  He was confined for 
11 days.

10.  On 25 March 1968, the appropriate authority approved the separation action and directed issuance of a DD Form 258A (Undesirable Discharge Certificate).  On 2 April 1968, the applicant was discharged accordingly.  He had completed 
10 months and 2 days of creditable active service, with 71 days of lost time due to AWOL and confinement.

11.  On 22 January 1969, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority for separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An Undesirable Discharge Certificate was normally considered appropriate.

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 (emphasis added), 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.

15.  The Manual for Courts-Martial, in effect at the time and the current edition, both state that voluntary intoxication not amounting to legal insanity, whether caused by alcohol or drugs, is not an excuse for an offense committed while in that condition.  This standard of conduct is accepted, not only by the military but by society as a whole, as demonstrated by the fact that drunk drivers are held legally responsible for the results of their behavior even though they are shown to be alcoholics.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his misconduct was due to his being an active alcoholic for 20 years.  He has not had a drink since 26 June 1986 and requests an upgrade of his discharge.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reason therefore were appropriate considering all the facts of the case.

3.  The applicant's contention that his misconduct was due to his being an active alcoholic is not justification for upgrading his discharge.

4.  Based on this 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 and lost time also renders his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

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.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20090012697



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ABCMR Record of Proceedings (cont)                                         AR20090012697


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