IN THE CASE OF:
BOARD DATE: 25 May 2010
DOCKET NUMBER: AR20090017285
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 upgrade of his undesirable discharge to an honorable discharge.
2. The applicant states his excessive consumption of alcohol was the cause of his problems. He contends that the alcohol rehabilitation program currently available to Soldiers did not exist at the time. He became sober on 24 December 1975 and has remained sober since. He does his best to be an excellent and productive citizen. His discharge holds him back from doing some things that he would like to do.
3. The applicant provides a letter of support.
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 applicants 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 applicants failure to
timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 6 October 1959, the applicant was inducted into the Army of the United States for 2 years. He completed his initial training and he was awarded military occupational specialty 112.00 (Heavy Weapons Infantryman).
3. On 30 August 1960, the applicant was honorably discharged for the purpose of immediate enlistment into the Regular Army. He had attained the rank/grade of private first class (PFC)/E-3 and he had completed 10 months and 25 days of creditable active duty service. On 31 August 1960, the applicant enlisted for
3 years.
4. Section 6 (Time Lost) of the applicant's DA Form 24 (Service Record) shows the following:
* 2 to 4 August 1961, 3 days, absent without leave (AWOL)
* 2 to 7 November 1961, 6 days, AWOL
* 14 to 24 November 1961, 11 days, AWOL
* 26 November to 28 December 1961, 33 days, confinement
* 10 to 16 September 1962, 7 days, AWOL
* 2 November, 1 day, AWOL
* 11 November to 10 December 1962, 30 days, confinement
5. DA Form 26 (Record of Court-Martial Conviction) shows the following:
* 21 August 1961, summary court-martial for failure to obey a lawful order from a noncommissioned officer, failure to obey a lawful order from a commissioned officer, and breaking restriction. Punishment included forfeiture of $72.00 pay per month for 1 month and 45 days of restriction
* 29 December 1961, special court-martial for AWOL (two specifications) and assault. Punishment included reduction to pay grade E-1 and forfeiture of $70.00 pay per month for 6 months
* 10 October 1962, summary court-martial for AWOL. Punishment included reduction to pay grade E-2 and forfeiture of $77.00 pay per month for 1 month
* 19 November 1962, special court-martial for AWOL, wrongfully appropriating a military vehicle, and breaking arrest in quarters on two occasions. Punishment included reduction to pay grade E-1, confinement at hard labor for 5 months, and forfeiture of $70.00 pay per month for 6 months
6. The applicant's discharge packet is not available in his military records. However, his records contain a copy of his duly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows he was administratively discharged on 21 December 1962, under the provisions of Army Regulation 600-208 (Personnel Separations - Unfitness). He was assigned separation program number (SPN) 28B indicating he was discharged due to unfitness (frequent involvement of a discreditable nature with civil or military authorities) and issued a DD Form 258A (Undesirable Discharge Certificate). He completed 2 years and 22 days of net active service this period and he had 91 days of time lost due to AWOL and confinement.
7. 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.
8. The letter of support provided by a long-time friend and co-worker of the applicant essentially states that the applicant got help with his alcohol problem in 1975. He began showing an interest in his children by taking care of them financially. He remarried in 1980. He has grown to be a very responsible person. He has excellent credit. He is an excellent worker, homeowner, husband and father. He has a clean police record. The author contends that if the applicant were to have encountered the same problems today, he would have several options for rehabilitation that were not available at the time of his troubles.
9 The Manual for Courts-Martial, as then in effect, and the edition currently in effect, 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.
10. Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness. The regulation stated that individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined that an individual's military record was characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities; (b) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault upon a child, or other indecent acts or offenses; (c) drug addiction or the unauthorized use or possession of habit-forming narcotic drugs or marijuana; (d) an established pattern for shirking; or (e) an established pattern showing dishonorable failure to pay just debts.
11. Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel. 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 members 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.
12. 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 Soldiers separation specifically allows such characterization.
13. Army Regulation 15-185 (ABCMR), paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his discharge should be upgraded so that he is no longer held back from doing some of the things he wants to do.
2. The evidence of record shows the applicant received two special court-martial convictions and two summary court-martial convictions.
3. In the absence of evidence to the contrary, it is presumed that the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record of service.
4. 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 alcoholic. Accordingly, the applicant's excessive use of alcohol does not mitigate his discharge.
5. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel. This misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.
6. 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.
7. 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) AR20090017285
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ABCMR Record of Proceedings (cont) AR20090017285
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