BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100008981 


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 general discharge to an honorable discharge.

2.  The applicant states he was coerced into accepting the characterization of service by being told that if he didn't he would be court-martialed and spend time in the stockade.  He had not previously been in trouble and had received an Army Good Conduct Medal.

3.  The applicant provides no supporting 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 enlisted in the Regular Army on 7 November 1984, completed training, and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).

3.  He reenlisted on 26 August 1987 and he was awarded the Army Good Conduct Medal for the period 7 November 1984 through 6 November 1987.

4.  He was promoted to the rank/grade of sergeant (SGT)/E-5 effective 6 May 1988 with a date of rank of 11 January 1988.

5.  On 2 June 1989, the applicant was apprehended by military police at Fort Ord, CA for making an unlawful turn, operating an unregistered vehicle, driving without a license in his possession, and driving under the influence of alcohol (DUI) with a blood alcohol content (BAC) result of .20/.19 percent (%).  At the time, the legal BAC level was below .10 %.

6.  On 29 June 1989, his post driving privileges were suspended for 6 months.  He was informed that if he was convicted of drunk driving his driving privileges would be revoked for one year.

7.  On 20 July 1989, the applicant was stopped by the California Highway Patrol for erratic driving and arrested after failing a field sobriety test.  His BAC was recorded in excess of .10 % and he was charged with DUI and operating a motor vehicle without proof of insurance.

8.  On 4 August 1989, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for the 2 June 1989 DUI offense.

9.  On 15 August 1989 he was again notified that his post driving privileges were suspended due to the 20 July 1989 DUI incident.

10.  On 13 September 1989, the applicant was issued a citation for failing to come to a complete stop at a posted stop sign.

11.  On 21 September 1989 his post driving privileges were revoked for five years due to the two prior suspensions for alcohol-related incidents and the
13 September 1989 traffic violation.

12.  On 19 October 1989, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order by operating a privately owned vehicle on the Fort Ord installation while under revoked driving privileges.  His punishment included a reduction to the rank/grade of specialist four (SP4)/E-4.
13.  On 15 November 1989, the U.S. District Court for Northern California convicted the applicant of DUI on 20 July 1989.  His sentence included a fine, three years of unsupervised probation, mandatory participation in an alcohol counseling program, a 90-day restriction of his driving privilege to only travel to and from his place of work or the location of his alcohol counseling, and that he could not drive with any measurable amount of alcohol in his system.

14.  On 11 December 1989, the applicant's company commander notified him that he was initiating action to discharge him under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense.  The specific reasons was his receipt of a Field Grade Article 15 on
19 October 1989 for disobeying a written lawful order by the Fort Ord Garrison Commander for driving on Fort Ord while his driving privileges was suspended and for his two separate DUI incidents on 2 June 1989 and 20 July 1989.

15.  On the same day, after consulting with counsel and being advised of his rights and options, the applicant acknowledged his commands intention to separate him for misconduct - commission of a serious offense.  He acknowledged that he could receive a general or an under other than honorable conditions discharge which could 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 discharge under other than honorable conditions.

16.  On 18 December 1989, the discharge authority approved the recommended separation action under the provisions of Army Regulation 635-200, paragraph 14-12c, with issuance of a General Discharge Certificate.

17.  The applicant was accordingly discharged on 2 January 1990 under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct - commission of a serious offense.  He completed 5 years, 1 month, and 26 days of total active service.

18.  Army Regulation 635-200 (Personnel Separations) 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, 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.

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 92 for failing to obey lawful orders or regulations and Article 111 for drunken or reckless driving.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was coerced into accepting the characterization of service by being told that if he didn't he would be court-martialed and spend time in the stockade.  He had not previously been in trouble and had received an Army Good Conduct Medal.

2.  The applicant had two DUI incidents within a very short period and he repeatedly violated lawful orders by driving on post while his driving privileges were suspended. 

3.  The offenses the applicant was facing could have resulted in his being court-martialed, a fact his counsel was required to notify him of as well as advising him of the potential consequences if he were found guilty.  He could also have been processed for an under other than honorable conditions discharge.  The applicant's contention that he was coerced to accept the general characterization of service is without merit. 

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 was discharged and is appropriate for the applicant's overall record of military service.

5.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20100008981



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ABCMR Record of Proceedings (cont)                                         AR20100008981



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