IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100012286 


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 that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states:

   a.  during his period of service he was reported absent without leave (AWOL) twice and he was discharged after the second offense;

   b.  the Army never treated him for his alcohol abuse problem which was a
significant factor in his AWOL offenses.  His alcohol problems were carried over into civilian life and contributed to his incarceration; and

   c.  although not solely responsible for his alcohol abuse problem, the Army
erred in not affording him treatment for this condition and, in effect, unjustly discharged him from service.

3.  The applicant provides a self-authored statement.


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 record shows he was inducted into the Army of the United States and entered active duty on 2 June 1969.  He was trained in, awarded, and served in military occupational specialty (MOS) 94B (Cook).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 33 (Appointments and Reductions) that he was advanced to the rank/grade of private (PV2)/E-2 on 2 October 1969 and this was the highest rank he held while serving on active duty.  It also shows that he was reduced to private
(PV1)/ E-1 on 21 August 1971.

4.  The applicant's DA Form 20, Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS [Expiration Term of Service]) shows he was reported absent on eight different occasions.  It also shows he accrued 577 days of time lost due to being AWOL and in confinement during the period 4 July 1969 to 10 September 1971.

5.  The applicant’s record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on two separate occasions, first for being AWOL from 4 – 6 July 1969, and then for being disrespectful in language towards his superior noncommissioned officer on 2 October 1969.

6.  On 3 August 1970, the State of Indiana convicted the applicant of the offense of forgery and sentenced him to 1 year in confinement of which 6 months was suspended.


7.  On 13 October 1970, the applicant acknowledged he had been notified of the proposed action to discharge him from the Army under the provisions of Army Regulation 635-206 based on his civil court conviction.  He also acknowledged he understood he could be issued a UD.

8.  Having been advised of the basis for the contemplated separation action, its effects, and the rights available to him, he made the following election of rights:

* waived consideration of his case by a board of officers
* waived representation by counsel
* did not make a statement in his own behalf 
* did not appeal his civilian conviction

9.  On 4 August 1971, the applicant's unit commander recommended that the applicant be discharged under the provisions of Army Regulation 635-206 by reason of civil conviction.

10.  On 21 August 1971, the separation authority approved the recommendation to discharge the applicant and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate).  Accordingly, the applicant was discharged from the Army on 10 September 1971.

11.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued to the applicant shows he completed 8 months and 10 days of creditable service.  

12.  On 28 November 1972, the Army Discharge Review Board, after careful consideration of the applicant's case, denied his request for an upgrade of his UD.

13.  Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion), in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section III of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  A UD was normally considered appropriate for members separated under this provision of the regulation.


14.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  Paragraph 3-7a of Army Regulation 635-200 provides that an HD 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.

15.  Army Regulation, 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 contends his UD should be upgraded because the Army erred by not affording him treatment for his alcohol abuse problem.

2.  The evidence of record confirms the applicant was found guilty, and he was sentenced to 1 year in civilian confinement (6 months suspended), for the charge of forgery.

3.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service for the charges he was convicted of and does not support an upgrade of his discharge.  

4.  Although there is no evidence to corroborate the applicant’s claim that he suffered from an alcohol abuse problem, if true, he would have violated the Army's policy not to abuse alcohol and compromised the special trust and confidence placed in him.  All Soldiers have the duty to support and abide by the Army's alcohol and drug abuse policies and an abuse of the same knowingly risks a member’s military career.  The applicant is advised that he was responsible for his own actions.

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



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)                                         AR20100012286



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ABCMR Record of Proceedings (cont)                                         AR20100012286



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