BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20100008400 


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 under other than honorable condition discharge be upgraded to a general discharge.

2.  The applicant states that he never had an alcohol problem before entering into the military, until basic and advanced individual training when his order was cut for Korea.  The big issues started when he began to drink socially which progressed into very heavy drinking and letting his health go.  He adds that the incident with the ration card was a very big mistake and he is truly and humbly sorry for his actions and wishes it had never happened.  He further states that alcohol changed his life for the worse; he didn’t know how to deal with or speak to his problem or where to go.  During the interim, he wanted to stop killing himself and change his life.  He found new hope and dreams through his kids and wanted to lead by example and started correcting the wrong in his life.  He dedicated his time and efforts in helping all veteran to survive substances abuse in recovery.  He also assists others with substance abuse.  He would humbly appreciate if the Board grants him the upgrade that warrants changing him and his family life. 

3.  The applicant provides the following documents:

* A letter from Samaritan Village, dated 21 January 2010
* Certificate of Appreciation Ed Thompson Veterans Center, dated 21 January 2010,
* Certificate for Completion for Anger Management, dated 18 August 2009

* Certificate for Golden Globes Award Path to Recovery, dated 29 September 2009 
* Certificate for Successfully Competing Phase III and is now Entering Phase IV of Treatment, dated 8 December 2009
* Certificate for Thanks from The United War Veterans Council 90th Anniversary New York City, Veterans Day Parade, dated 11 November 2009
* Certificate for the Completion Pathways to Recovery Forum, dated 11 September 2009

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's records show he enlisted in the Regular Army for a period of 3 years on 17 August 1977.  He completed basic combat and advanced individual training, and he was awarded military occupational specialty 16E (Hawk Fire Control Crewman).  The highest rank/grade he attained during his military service was private first class/PFC.

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 6 May 1978, for violating a general regulation by using a ration control plate belonging to another Soldier, conspiring with another Soldier to illegally dispose of duty free goods, and absenting himself without authority on 17 October 1978.  His punishment consisted of a reduction to PV1/E-1 (suspended for 6 months), a forfeiture of $232.00 pay per month for 2 months, and 45 days of restriction and extra duty. 



	b.  On 1 August 1979, for disobeying a lawful order from a superior non-commissioned officer (NCO) to report to work on or about 24 July 1979.  His punishment consisted of a reduction to PV2/E-2, a forfeiture of $75.00, and 14 days of restriction and extra duty.

	c.  On 15 August 1979, for failing to go at the time prescribed to his appointed place of duty on or about 7 August 1979 and disobeying a lawful order from a superior NCO on or about 7 August 1979.  His punishment consisted of 14 days of restriction and a forfeiture of $233.00 per month for 1 month.

	d.  On 6 September 1979, for twice disobeying a lawful order from a NCO on or about 24 August 1979.  His punishment consisted of a forfeiture of 1/2 month pay for 2 months, a forfeiture of $233.00 per month for 2 months, and 45 days extra duty.

	e.  On 22 October 1979, for failing to go at the time prescribed to his appointed place of duty on or about 13 October 1979.  His punishment consisted of a detention of $233.00 pay for 1 month, and 7 days of restriction and extra duty.

4.  On 23 October 1979, his immediate commander notified him of his intent to initiate separation action against him under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of misconduct. 

5.  On 25 October 1979, he acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and a personal appearance before a separation board, and he elected not to submit a statement in his own behalf.

6.  He further indicated that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge, under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

7.  On 25 October 1979, his immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct, frequent incidents of a discreditable nature with civil or military authorities. 
8.  On 25 October 1979, his intermediate commander recommended approval of the request to discharge him.  He stated that the applicant had frequent incidents of a discreditable nature with civil or military authorities.  His immediate separation was in the best interest of the Army, his unit, and him. 

9.  On 9 November 1979, his senior commander also recommended approval of the discharge.

10.  On 28 November 1979, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate and he be reduced to the lowest enlisted grade.  On 4 December 1979, he was accordingly discharged.  The DD Form 214 he was issued confirms he had completed a total of 2 years, 1 month, and 18 days of creditable active military service.

11.  On 19 June 1982, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  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 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 the regulation.

13.  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.

14.  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 contentions and supporting documents were carefully considered and found to be insufficient in merit.

2.  The evidence of record shows the applicant had a history of disciplinary problems throughout his military service, including five instances of NJP.  Accordingly, his chain of command initiated separation action against him.  

3.  The evidence of record also shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20100008400



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)