IN THE CASE OF:	  

		BOARD DATE:	    15 June 2010

		DOCKET NUMBER:  AR20090019522 


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 1981 discharge under other than honorable conditions be upgraded.

2.  The applicant states he feels his alcohol use was the cause of his discharge and now realizes the effect it had on him.  He states he received the under other than honorable conditions discharge because of several fights he was in while in the Army and maintains it was his drinking that caused him to get into these fights.  He states since that time he has realized his actions at the time were uncalled for.  He notes he becomes confrontational when he’s been drinking and therefore has changed his behavior.  He would now like to move on with his life with a clear discharge.

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.  Records available to the Board indicate the applicant initially entered military service as a member of the Minnesota Army National Guard in 1976 and on 
24 April 1979 enlisted in the Regular Army.  

3.  In October 1979 the applicant received a Letter of Commendation recognizing his contributions to winning the Commanding General’s Best Dining Facility Award at Fort Carson, Colorado for the 4th quarter of 1979.  By December 1979 he had been advanced to the rank of private/E-2.

4.  Between March and December 1980 the applicant was punished three times under Article 15 of the Uniform Code of Military Justice (UCMJ) for offenses including disobeying a lawful order, being disrespectful to senior personnel, and for being drunk and disorderly.  In April 1980 his unit commander blocked his promotion to pay grade E-3 because his duty performance did not warrant promotion.

5.  His record also contains a reprimand for fighting with another Soldier in August 1980.  The letter notes he was reprimanded twice before for similar fighting incidents.

6.  In January 1981 the applicant’s unit commander initiated actions to administratively discharge the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 14-33b for misconduct due to frequent incidents of a discreditable nature.  The commander informed the applicant he intended to recommend discharge under other than honorable conditions.  The applicant acknowledged receipt of the proposed separation action, including the ramifications of being discharged under other than honorable conditions, consulted with counsel, and waived his attendant rights.

7.  The appropriate separation authority approved the unit commander’s recommendation that the applicant be administratively discharged and directed that the applicant be discharged under other than honorable conditions.  

8.  On 18 February 1981 the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-33, as a result of frequent incidents of a discreditable nature with civil or military authorities.  He had completed 1 year, 10 months and 18 days of active Federal service during this period of service.

9.  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.

10.  References:

   a.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 14-33b of the regulation established the policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absent without leave.  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 considered appropriate.

   b.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was 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 discharge under other than honorable conditions was appropriate considering the basis for his separation.  There is no evidence indicating his separation was not accomplished in compliance with regulatory guidance and no indication of any procedural errors that would have jeopardized his rights.

2.  The applicant’s argument that his use of alcohol should excuse the behavior which resulted in his discharge or that he now recognizes the results of his excessive drinking is not sufficiently mitigating to warrant the relief requested.

3.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.  

4.  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 has failed to submit evidence that would satisfy this requirement.  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)                                         AR20090019522





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ABCMR Record of Proceedings (cont)                                         AR20090019522



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