IN THE CASE OF:	

		BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090017950 


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 under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD).

2.  The applicant states that during 1987 he was acting out of character due to the death of two close friends and his grandmother's terminal illness.  He was also having financial problems, didn't know where to turn, and was ashamed to ask for help.  He comes from a military family and it is painful when everyone sits down and talks about their service.

3.  The applicant provides a self-authored letter of his period of service and his military accomplishments and copies of two DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the period ending 6 June 1985 and 21 December 1987.

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 10 June 1981 and was honorably released from active duty on 6 June 1985 by reason of expiration term of service.  He served in Egypt for 6 months and in Germany for 20 months.  His DD Form 214 for this period of service lists his awards as the Army Service Ribbon, Overseas Service Ribbon, Expert Infantryman Badge, Parachutist Badge, Army Good Conduct Medal, Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars, and the Multinational Force and Observers Medal.

3.  He enlisted in the Regular Army on 30 September 1985 and he was promoted to the rank/grade of sergeant (SGT)/E-5, effective 28 January 1986.

4.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 30 July 1986, for violation of physical security (barracks wall locker unsecured); and

	b.  on 18 September 1986, for communicating a threat to an employee of the West Point club system.

5.  On 27 August 1986 the applicant was apprehended and charged with driving under the influence (DUI) and driving without a license.

6.  His command enrolled him in the Army Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).

7.  On 31 December 1986 the applicant was apprehended on a second DUI offense.

8.  On 28 January 1987 a letter from ADAPCP indicated the applicant's performance in the program was fair to poor and that he continued to abuse alcohol.

9.  On 13 February 1987 he was found guilty in civilian court for DUI.

10.  On 18 February 1987 the applicant was dropped from the ADAPCP for failure to continue treatment.

11.  On 8 March 1987 a bar to reenlistment was imposed.

12.  A 29 June 1987 Administrative Reduction Board, Summary of Proceedings notes that the applicant was convicted twice for DUI and had failed the ADAPCP due to failure to attend classes.  It was also reported he was facing NJP for failure to go at the time prescribed to his place of duty and disobeying a lawful order.  The board voted to recommend he be reduced to pay grade E-4.  The findings and recommendation were approved on 6 July 1987.

13.  The applicant was absent without leave (AWOL) from 14 July 1987 through 2 September 1987, when he was apprehended by civil authorities and returned to military control.

14.  Court-martial charges for AWOL were preferred and after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for discharge for the good of the service - in lieu of trial by court-martial, for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that if his request was accepted, he could receive a discharge under other than honorable conditions and be furnished a UOTHC Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

15.  On 30 October 1987, the court-martial convening authority approved the applicant's request for discharge, directed he be reduced to the lowest enlisted pay grade, and receive a UOTHC discharge.

16.  The applicant was discharged under Army Regulation 635-200, chapter 10 with a UOTHC discharge on 21 December 1987.  He had 2 years, 1 month, and 4 days of creditable active service during this period of service.  In addition to the awards listed on his prior DD Form 214 he was awarded the Army Achievement Medal, Air Assault Badge, and the Noncommissioned Officers Professional Development Ribbon.

17.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized 
punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

19.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

20.  Army Regulation 635-200, chapter 3, outlines the criteria for characterization of service.  It states, in pertinent part, that under:

* paragraph 3-7a, an HD is a separation with honor.  The honorable
characterization is appropriate when the quality of the Soldier’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.  Paragraph 3-7a(2)(b) states a Soldier will not necessarily be denied an honorable discharge solely by reason of the number of convictions by court-martial or actions under the UCMJ Art 15.  Conviction by a general court-martial or by more than one special court-martial does not automatically rule out the possibility of awarding an honorable discharge.

* paragraph 3-7b, 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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that during 1987 he was acting out of character due to the death of two close friends and his grandmother's terminal illness.  He was also having financial problems, didn't know where to turn, and was ashamed to ask for help.

2.  The applicant had a promising career; however, he developed alcohol-related problems that led to misconduct and subsequent discharge.  His misconduct started in 1986, not in 1987.

3.  The applicant's record does not contain any indication of the incidents that he now offers as mitigating factors.  Furthermore, he did not address them during his Administrative Reduction Board.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offence for which he voluntarily requested discharge and is appropriate for his overall record of military service during his second enlistment.

5.  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.  

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)                                         AR20090017950



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ABCMR Record of Proceedings (cont)                                         AR20090017950



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