IN THE CASE OF:	  

		BOARD DATE:	   26 January 2010

		DOCKET NUMBER:  AR20090013875 


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 that his general discharge under honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that he was discharged as a result of alcohol abuse and youth.  He contends that his job performance met Army standards and he never received a court-martial.  He was also awarded the Army Good Conduct Medal.  He has faced his demons and is now clean and sober.  However, his general discharge is blocking him from obtaining better employment.  

3.  The applicant provides, in support of his application, copies of his DD form 214 (Certificate of Release or Discharge from Active Duty), eight letters of support from family and friends, and a copy of his resume.

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 18 November 1981, at age 20, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty 31C (Single Channel Radio Operator).

3.  On 25 June 1982, the applicant was assigned as a radio operator with Company A, 304th Signal Battalion, located in the Republic of Korea.

4.  DA Form 2627-2 (Record of Supplementary Action Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 9 May 1983, indicates the applicant was reduced to pay grade E-2.  This action was based on the vacation of suspended punishment imposed on 20 April 1983 [he failed to go to his appointed place of duty at the time prescribed on 30 April 1983].

5.  On 16 July 1983, the applicant departed the Republic of Korea for duty at Fort Lewis, Washington.

6.  On 1November 1983, the applicant was promoted to private first class, pay grade E-3.   On 1 May 1984, he was promoted to specialist four, pay grade E-4.

7.  On 12 December 1985, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for failure to go to morning formation and for disobeying a lawful order to get a haircut.  His punishment included a reduction to pay grade E-3, a forfeiture of $100.00 pay (suspended), and 14 days of restriction and extra duty.

8.  On 19 February 1986, the applicant departed Fort Lewis, Washington for the Republic of Korea and he was subsequently assigned to Company A, 304th Signal Battalion.

9.  On 27 January 1987, the applicant accepted NJP for failure to obey a lawful regulation.  His punishment included 14 days of restriction and extra duty.

10.  On 10 March 1987, the applicant was barred from reenlistment.  He acknowledged this action and elected not to submit a statement.





11.  On 5 April 1987, the applicant accepted NJP for assaulting his wife by biting her on the head.  His punishment included reduction to pay grade E-3 (suspended), a forfeiture of $100.00 pay for 2 months, and 14 days of restriction.  The suspended portion of the punishment [reduction to pay grade E-3] was subsequently vacated as a result of the applicant being incapacitated and unable to perform his duties due to intoxication.

12.  On 2 November 1987, the applicant's commander informed the applicant that action was being initiated to separate him under the provisions of Army Regulation 635-200, chapter 14, due to a pattern of misconduct.  The commander cited the bases for the recommendation was the applicant's failure to obey a lawful order, assault on his wife, and the overindulgence in drugs or alcohol resulting in incapacitation for the performance of duty.

13.  On 6 November 1987, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf.

14.  On 16 November 1987, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to a pattern of misconduct.  The commander cited the applicant's failure to obey a lawful order, assault on his wife, and his overindulgence in drugs or alcohol resulting in incapacitation for duty as the bases for the recommendation.  The commander also indicated the applicant's duty performance had been average.

15.  On 17 November 1987, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a general discharge under honorable conditions.

16.  Accordingly, on 21 December 1987, the applicant was discharged under honorable conditions.  He had completed 6 years, 1 month, and 4 days of creditable active duty service.

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

18.  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 minor disciplinary infractions, a pattern of misconduct, commission of a serious offense that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

19.  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.

20.  The eight letters of support, provided by the applicant, essentially states the applicant has been clean and sober for 14 years, that he has regained the respect of his family, that he has made new friends and he has a good job.  He is a different person now, and deserves to have his discharge upgraded.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the abuse of alcohol and his youth were the reasons for the misconduct that led to his general discharge.  He now asks that his discharge be upgraded for the purpose of obtaining better employment.

2.  The available evidence shows the applicant received NJP in 1983, 1985 and 1987 for failing to obey lawful orders and regulations, assault, and intoxication.  Clearly, this is a pattern of misconduct.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no evidence of procedural errors which would have jeopardized his rights.

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

5.  The applicant's contentions that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was 
20 years of age when he enlisted; that he had satisfactorily completed his training and attained the rank of specialist four, pay grade E-4.  His satisfactory performance demonstrated his capacity to serve and showed that he was neither too young nor immature.



6.  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 renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

7.  The applicant's desire to obtain better employment is not justification for an upgrade of his discharge.

8.  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.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090013875



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)