BOARD DATE:	15 June 2010  

		DOCKET NUMBER:  AR20090021861 


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, in effect, upgrade of his under other than honorable conditions discharge to honorable.

2.  The applicant states he does not believe his actions called for the type of discharge he received.  If anything, he should have been offered rehabilitation for his drinking, which interfered with his duties and led to his misconduct.  He also states he is currently working in a government position with the U.S. Postal Service and needs his veteran's points.

3.  The applicant provides no documentation 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 23 September 1976.  He was trained in and awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  On 4 October 1977, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully possessing and using marijuana.

4.  On 12 April 1978, the applicant accepted NJP under Article 15, UCMJ, for the following misconduct committed on 8 March 1978:

* failing to go at the time prescribed to his appointed place of duty
* willfully disobeying a lawful order from a noncommissioned officer
* willfully disobeying a lawful command from a commissioned officer
* behaving with disrespect toward a commissioned officer
* assaulting a noncommissioned officer
* threatening a noncommissioned officer

5.  A witness statement attached to the NJP, dated 12 April 1978, shows that during the incident on 8 March 1978, the applicant's words were slurred, that he was "stumbling around," and that the witness smelled alcohol on his breath.

6.  On 21 June 1978, the applicant received formal counseling for refusing to obey a direct order from a noncommissioned officer.

7.  On 5 October 1978, the applicant accepted NJP under Article 15, UCMJ, for willfully disobeying a lawful order.  His punishment was reduction to private/E-1 (suspended for 60 days), forfeiture of $100.00 per month for 2 months, and 21 days of extra duty and restriction.

8.  On 13 October 1978, the applicant received formal and informal counseling for refusing to obey a direct order.

9.  On 4 November 1978, the applicant's immediate commander vacated the suspension of reduction to private/E-1 imposed on 5 October 1978.

10.  On 19 January 1979, the applicant's immediate commander informed him he was initiating action to effect his discharge from the Army for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-33b(1).

11.  The applicant acknowledged receipt of the notification of intent to initiate separation, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect, the rights available to him, the effect of any action taken by him in waiving his rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life if he received a general discharge under honorable conditions and that as the result of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws.  He waived his right to submit statements on his behalf, his right to counsel, and his right to a board of officers hearing.

12.  On 23 March 1979, the separation authority approved the applicant's discharge under the provisions of paragraph 14-33b(1) of Army Regulation 
635-200 and directed the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.  The separation authority also waived the 
60-day rehabilitative transfer requirement specified in paragraph 13-8b of Army Regulation 635-200.  On 23 April 1979, the applicant was discharged accordingly.  He completed 2 years, 7 months, and 1 day of creditable active military service.

13.  A DA Form 3322-R (Report of Mental Status Evaluation) completed during the applicant's discharge proceedings shows he met retention standards.  The record is void of documentation showing the applicant's chain of command counseled the applicant regarding alcohol abuse or referred him to treatment for alcohol abuse.

14.  On 26 July 1995, the Army Discharge Review Board (ADRB) informed the applicant that his application to upgrade his discharge was denied.  The ADRB directed change of the authority and reason for his discharge from Army Regulation 635-200, paragraph 14-33b (misconduct - pattern of misconduct), to Army Regulation 635-200, paragraph 14-12b (misconduct).

15.  The version of the DD Form 214 (Report of Separation from Active Duty) in use at the time of the applicant's discharge states the authority and reason for separation in item 9c.  The record includes a DD Form 215 (Correction to DD Form 214) showing the change directed by the ADRB was implemented incorrectly by correcting items 25 and 28.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.

17.  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.

18.  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 request for upgrade of this under other than honorable conditions discharge to honorable was carefully considered but is not supported by the evidence.

2.  The applicant has not provided documentation showing, nor does the evidence of record show, any irregularities in the administrative proceedings against him that led to his discharge or that his rights were not protected throughout the proceedings.

3.  Based on his record of indiscipline, which includes accepting NJP on three occasions, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general under honorable conditions or an honorable discharge.

4.  The evidence shows the applicant's records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Case Management Support Division, St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x_____  ____x___  ____x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the Case Management Support Division administratively correct the records of the individual concerned to show the following in item 9c of his DD Form 214:  "Army Regulation 635-200, paragraph 14-12b, misconduct."



      ____________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)                                         AR20090021861



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ABCMR Record of Proceedings (cont)                                         AR20090021861



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