IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090013381 


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 general discharge to honorable.

2.  The applicant states the general discharge was inequitable because it was based on one isolated incident in 10 years, 8 months, and 24 days of service.  He states he was discharged after a driving-while-intoxicated incident.  He has had no blemishes on his civilian record in the 21 years since his discharge.  The discharge hinders his employability.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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, a Regular Army career infantryman, was promoted to sergeant, pay grade E-5, on 8 October 1985.

3.  On 20 March 1988 he had 9 years and 5 months of service when he was arrested for driving under the influence (DUI) of alcohol.

4.  The applicant pled guilty to DUI.  He was sentenced to 5 years of unsupervised probation which was suspended contingent upon legal behavior.  He was also required to complete a State of California first offender alcohol counseling program.

5.  His second DUI occurred on 6 May 1989.  He admitted to violating his probation and it was revoked.  His new case was remanded to trial by the original judge who would hear it together with the probation violation.

6.  On 24 May 1989, the applicant again pled guilty.  He was sentenced to serve 20 days of confinement, a $1000.00 fine, suspension of his driver's license for 18 months, and probation.

7.  On 18 July 1989, the unit commander initiated action to discharge the applicant under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for commission of serious offenses for DUI violations on 20 March 1988 and 6 May 1989. 

8.  The applicant consulted with legal counsel and he submitted a conditional waiver of his rights to a personal appearance before an administrative separation board as well as continuing consultation and representation by counsel in exchange for receipt of a general discharge.  In the absence of approval of a general discharge, his administrative processing rights were all reserved.  He also acknowledged that he could expect to encounter substantial prejudice in civilian life as the result of a general discharge and that he might be ineligible for some veterans' benefits under State and Federal laws.

9.  At a mental status evaluation his behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, thought content normal, and memory good.  There was no significant mental illness.  He was mentally responsible.  He could distinguish right from wrong and could adhere to the right.

10.  The intermediate commander recommended approval of the separation and issuance of a general discharge.  On 28 July 1989, the separation authority approved the chain of command's recommendation, waived further rehabilitation and counseling, and directed the issuance of a general discharge.
11.  On 14 August 1989, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct.  He had completed 10 years, 8 months, and 24 days of creditable active service with no lost time.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 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 commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely-related offense under the Manual for Courts-Martial.  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.

14.  The Manual for Courts-Martial Table of Maximum Punishments provides that a bad conduct discharge is authorized for any drunk driving offense.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the general discharge was inequitable because it was based on one isolated incident in 10 years, 8 months, and 24 days of service.  He has had no blemishes on his civilian record in the 21 years since his discharge.

2.  The applicant was guilty of not one, but two DUI violations.  He could have been processed for elimination for the first offense.  Clearly his discharge was not based on a single offense.

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

4.  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.

5.  In view of the foregoing there is no basis for granting the applicant's requested 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)                                         AR20090013381



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ABCMR Record of Proceedings (cont)                                         AR20090013381



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