BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090016347 


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 his 1976 discharge be upgraded to an honorable discharge.

2.  The applicant states he did his job well until he started drinking and his conduct changed.  He says he's lived with the resentment for 36 years and his life is a mess.  He says he was ashamed of his discharge and never told his family.  He would now like to have his discharge upgraded so he could respect himself again.

3.  The applicant provides no additional 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 enlisted in the Regular Army on 30 April 1974.

3.  His record of misconduct includes:

* May 1974 – Article 15 for dereliction of duty while performing guard duty
* August 1974 – conviction by special court-martial for assault
* November 1975 – Article 15 for urinating in a parking lot
* February 1976 – Article 15 for failing to go to his appointed place of duty
* August 1976 – conviction by special court-martial for failure to repair and disrespect

4.  As a result of his misconduct the applicant was confined for 101 days between July and October 1974 and for 55 days between August and October 1976.

5.  He received only one performance evaluation report during his military service.  The evaluation, rendered at Fort Bragg, North Carolina, for the period September 1975 to January 1976 noted the applicant:

* had little or no interest in his unit or the military way of life
* required constant supervision
* could not be depended on to complete any assigned task
* had problems getting along with others
* had been counseled on numerous occasions with no intention of improving

6.  In October 1976 the applicant underwent a mental status evaluation while a member of the U.S. Army Retraining Brigade at Fort Riley, Kansas.  The evaluation didn't mention any drug or alcohol use.  It did note the applicant:

* showed a defiant attitude
* refused to accept responsibility for his maladaptive behavior
* lacked motivation toward performing military duties

7.  On 2 November 1976 the applicant's commander initiated action to administratively separate him from active duty under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 13-5.  The commander indicated he was recommending the separation action because of the applicant's misconduct.  The commander also noted the applicant was counseled multiple times about his conduct while at the Retraining Brigade.  The applicant acknowledged receipt of the proposed separation and waived his attendant rights.  He didn't submit any statements in his own behalf.

8.  The recommendation for separation was approved and on 10 November 1976 the applicant was discharged under other than honorable conditions.  His DD Form 214 (Report of Separation from Active Duty) shows the authority for his separation as paragraph 13-5a(1), Army Regulation 635-200.

9.  His records don't indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  References:

	a.  Army Regulation 635-200, chapter 13, applied to separation for unfitness or unsuitability.  At that time, paragraph 13-5a(1) provided for the separation of individuals for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  When separation for unfitness was warranted, an under other than honorable conditions discharge was appropriate.

	b.  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.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  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.

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

3.  The applicant's argument that he did his job well until he began drinking isn't supported by the evidence of record.  The applicant's misconduct commenced shortly after he entered military service and continued until his discharge.  He provided no evidence to show alcohol use was the cause of his misconduct and failed to raise such an issue during his mental status evaluation or his separation processing.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.

4.  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)                                         AR20090016347



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ABCMR Record of Proceedings (cont)                                         AR20090016347



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