BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100008994 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant states he had an alcohol problem and he was discharged without receiving treatment.  He states his alcohol problem contributed to all of his problems while he was in the service and he now wishes his discharge to be changed to honorable.

3.  The applicant provides no additional evidence in support of his application.

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 military personnel records show he enlisted in the Regular Army on 24 November 1980 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 64C (Motor Transport Operator).

3.  On 8 April 1981, the applicant was assigned to the 70th Transportation Company in Germany.

4.  On 4 January 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for:

* wrongfully using provoking words to a noncommissioned officer (NCO)
* failing to obey a lawful order from an NCO
* assaulting an NCO
* being drunk and disorderly in the command

5.  The applicant appealed his punishment.  On 19 January 1982, a captain in the Judge Advocate General's Corps reviewed the appeal and determined the proceedings were conducted in accordance with applicable law and regulation and the punishment imposed was not disproportionate to the offenses.

6.  On 20 January 1982, the applicant's appeal was denied.

7.  On 27 January 1982, the applicant’s commander notified him that he was initiating action to discharge him under the provisions of paragraph 5-31 (Expeditious Discharge Program [EDP]) of Army Regulation 635-200 (Personnel Separations) with a general discharge.  The commander stated the reasons for his proposed action were the applicant's 

* disrespect towards an NCO
* disobeying orders
* being drunk and disorderly
* belligerent conduct

8.  The applicant was advised he had the right to decline this discharge, but if subsequent misconduct indicates that such action is warranted, he may be subjected to disciplinary or administrative separation procedures under other provisions of law or regulation.

9.  The applicant was further advised that if he received a general discharge he may expect to encounter substantial prejudice in civilian life.  The commander also advised the applicant:

* of his right to consult with an officer of the Judge Advocate General's Corps prior to completing his acknowledgements
* of his right to submit a statement in his own behalf
* he would not be permitted to apply for enlistment in the United States Army within 2 years from his date of separation
* there is no automatic upgrading nor review by any government agency of any discharge certificate or character of service which is less than honorable

10.  On 29 January 1982, the applicant acknowledged notification of the proposed discharge action and voluntarily consented to the discharge.  He did not submit statements in his own behalf.

11.  The appropriate authority approved the applicant’s expeditious discharge action and directed he be furnished a General Discharge Certificate.  

12.  On 11 February 1982, the applicant was discharged under the provisions of paragraph 5-31 of Army Regulation 635-200.  He had completed 1 year, 
2 months, and 18 days of active service that was characterized as under honorable conditions.  

13.  The applicant's service medical health record was not available for review.

14.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 5-31 of this regulation provided for the discharge of enlisted personnel who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel in the Army because of the existence of one or more of the following conditions: poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential.  The regulation provided that no individual would be discharged under this program unless the individual voluntarily consented to the proposed discharge.  Individuals discharged under this regulation were issued either a general or honorable discharge.





16.  Army Regulation 635-200, then in effect, provides that those Soldiers processed under the EDP may be released from active duty and transferred to the IRR to complete their military obligation if deemed to have the potential for service under conditions of full mobilization.  Soldiers deemed to have no potential for useful service under conditions of full mobilization were to be discharged.

17.  Army Regulation 635-200 states 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his general discharge should be upgraded to an honorable discharge.  He contends his alcohol problem contributed to all of his problems while he was in the service.

2.  The applicant received NJP on one occasion for being drunk and disorderly.  His health record was not available for review and he has not submitted any substantive evidence showing he had an alcohol problem or that he sought treatment through his chain of command or through any other support channels for such a problem.   

3.  The characterization of the applicant's service was based on his entire period of service and not just a single incident.  The EDP package submitted by the applicant's commander documented numerous infractions of military discipline.  The applicant clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel

4.  Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The applicant’s commander notified him of the reasons and the type of discharge the commander was recommending.  The applicant voluntarily consented to the proposed discharge.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

5.  The ABCMR does not upgrade discharges based on the passage of time.  Therefore, there is insufficient evidence to justify an upgrade to the applicant's 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)                                         AR20100008994



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)