IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090014691 


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, under honorable conditions discharge to a fully honorable discharge.

2.  The applicant states that he was suffering from depression and substance abuse while in the military and also before the military.  He used alcohol and street drugs and he has been diagnosed with a mental health problem.  He asked his commander for help at the time but did not receive it.  He could not talk to anyone about his problem, so he started self-medicating with alcohol and cocaine and he was even cited for driving while intoxicated (DWI) on Fort Lewis, WA at one time.  He ultimately received an undesirable discharge and he was processed out of the military without getting the help that he needed. He feels that he should have been afforded the opportunity to speak to someone at the time and seek help.  He now asks that the Board help him with this matter so he may receive medical help as a veteran.

3.  The applicant did not provide any additional documentary evidence 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 (RA) on 5 May 1987.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 54B (Chemical Operations Specialist).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant’s records also show he was awarded the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar.

4.  On 5 April 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on or about 7 March 1988 and for violating a general regulation by consuming alcohol while under the age of 21 on or about 7 March 1988.  His punishment consisted of a reduction to private (PV1)/E-1, forfeiture of $175.00 pay, and restriction and extra duty for 14 days.

5.  On 19 April 1988, the applicant's immediate commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) on the applicant citing an incident of unlawful consumption of alcohol and failure to be at his appointed place of duty.  The immediate commander also remarked that the applicant had been negligent in financial matters in that he refused to support his family and had defaulted on a car loan.  The applicant acknowledged receipt of the bar but elected to submit a statement in his behalf.  His statement is not available for review with this case.  The bar was ultimately approved by the approval authority on 29 April 1988.

6.  On 20 April 1988, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for suspicions of driving under the influence of alcohol on or about 7 March 1988.  He acknowledged receipt of the GOMOR and read and fully understood the unfavorable information, but elected not to submit a statement in his own behalf.


7.  On 20 April 1988, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for breaking restriction on or about 9 April 1988.  His punishment consisted of 14 days of extra duty (7 days suspended until 27 June 1988),        14 days of restriction (7 days suspended until 17 June 1988), and a forfeiture of $156.00 pay (suspended until 27 June 1988).

8.  On 26 April 1988, the applicant's punishment of reduction to PV1/E-1, a forfeiture of $175.00 pay, and restriction and extra duty for 14 days imposed on
5 April 1988, was set aside on the basis that the forfeiture was in excess of the legal limits.

9.  On 20 July 1988, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on or about 9 July 1988 and for willfully disobeying a lawful order on or about 9 July 1988.  His punishment consisted of a forfeiture of $156.00 pay and restriction and extra duty for 14 days.

10.  On 22 August 1988, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12(c), by reason of misconduct.  Specifically, he cited the applicant's previous incident of driving while intoxicated and wrongful underage consumption of alcohol.  He recommended a general, under honorable conditions discharge.

11.  On 22 August 1988, the applicant acknowledged receipt of the commander's intent to separate him.  On 23 August 1988, he consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He further elected consideration of his case by a board of officer (if he was being considered for an under other than honorable conditions discharge), personal appearance before a board of officers (if he was being considered for an under other than honorable conditions discharge), and he submitted a statement in his own behalf in which he stated that he admitted that he had not been a model Soldier and recognized the mistakes he made.  He knew that what he did was wrong and he asked for a second chance.

12.  The applicant further indicated that he understood he could expect to encounter substantial prejudice in civilian life if a general, under 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 as a result of the issuance of an under other than honorable conditions discharge.

13.  On 25 August 1988, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12(c), for misconduct-commission of a serious offense.  The immediate commander recommended a general, under honorable conditions discharge.

14.  On 26 August 1988, the applicant’s intermediate commander reviewed the separation recommendation and recommended approval.  He further recommended the applicant's service be characterized as general, under honorable conditions.

15.  On 29 August 1988, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct-commission of a serious offense.  He directed the applicant's service be characterized as general, under honorable conditions.  Accordingly, the applicant was discharged on 6 September 1988.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a character of service of under honorable conditions by reason of misconduct.  This form further confirms that the applicant completed 1 year, 4 months, and 2 days of creditable active service.

16.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

17.  Army Regulation 635-200, in effect at the time, set 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 regulation.

18.  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 contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge.

2.  The applicant's service record reveals a history of misconduct ranging from failing to go at the time prescribed to his appointed place of duty, financial delinquency, and underage drinking to driving while intoxicated.  He had
3 instances of NJP, a bar to reenlistment, and a GOMOR.  Accordingly, his chain of command initiated separation action against him.  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 discharge was appropriate because the quality of his service was not consistent with 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.

4.  There is no evidence that the applicant addressed any issues of depression, drinking, or drug use with his commander.  In fact, he did not address any of those issues when he received the GOMOR or in the rebuttal statement he submitted at the time of discharge.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20090014691



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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