BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100008563 


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 conditions discharge be upgraded to an honorable discharge.

2.  The applicant states there is no erroneous information in his service records.  He was pulled over for driving under the influence (DUI) twice as a lieutenant, which precipitated his discharge from active duty.  The applicant states he is not making this request to get a job or receive any benefits as a result of the upgrade.  The main reason for his request is that he is age 41 now realizes he had a serious problem with alcohol.  He can say with conviction and clarity of mind now that he has been sober for several years.

3.  The applicant states he understands the DUI showed poor judgment and to do it twice points to a more serious problem.  The applicant states the two achievements he is most proud of so far in his life are graduating from West Point and serving on active duty.  He feels his actions back then were unacceptable and a failure to drink responsibly, but it had nothing to do with his honor. 

4.  The applicant provides no additional documentation.

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, a West Point graduate, accepted a commission as a second lieutenant in the Regular Army on 1 June 1991.  He was promoted to first lieutenant on 1 June 1993.

3.  On 31 August 1993, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for operating a motor vehicle while drunk.

4.  The applicant's court-martial charge sheet is not available for review.  

5.  On an unknown date, the applicant requested resignation for the good of the service under the provisions of Army Regulation 635-120 (Officer Resignations and Discharges), chapter 5.  His resignation packet is not available.   

6.  On 3 October 1994, the applicant was discharged under the provisions of Army Regulation 635-120 with an under other than honorable conditions discharge.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had completed 3 years, 4 months, and 3 days of active military service with no lost time.  

7.  Army Regulation 635-120 in effect at the time implements the statutory provisions of Title 10, U.S. Code, governing officer separations and provides policies and procedures for separating officers from active duty.  Chapter 5 of this regulation provides that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial, the officer is under suspended sentence of dismissal, or the officer elects to tender a resignation because of reasons outlined in Army Regulation 635-100, paragraph 5-11a(7) (misconduct, moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100  (Officer Personnel).  The regulation provides that a resignation for the good of the 

service, when approved at Headquarters, Department of the Army, is normally accepted as being under other than honorable conditions.

8.  Army Regulation 635-100 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered.  However, the available evidence is not sufficient to grant his request.

2.  In the absence of the applicant's voluntary request for separation under the provisions of Army Regulation 635-120, chapter 5 for the good of the service to avoid trial by court-martial it is presumed his separation processing was in conformance with applicable regulations.  

3.  Considering the seriousness of the applicant's offenses, it appears his service was appropriately characterized.  

4.  After a review of the available evidence, it is determined the applicant has not presented sufficient evidence which warrants changing his under other than honorable conditions discharge to an honorable discharge.

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)                                         AR20100008563



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR2