IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100013593 


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 under other than honorable conditions discharge to a general or an honorable discharge.

2.  He states, in effect, he is sorry for his past mistakes.  His family has a tradition of serving in the military and he let them down as well.  He has struggled with drug and alcohol addiction for years and he has made his share of irresponsible decisions.  After the death of his two brothers in 1988, he went through some serious inner battles trying to medicate the pain that resulted in many incarcerations which is where he is now.

3.  He is trying to clean the wreckage of his past, give honor to his family, and be a responsible, productive, successful citizen.  He is active in his recovery by receiving a certificate in job development work keys.  He tutors and is involved with Alcoholics Anonymous and the ministry.  He is making a sincere effort to do something positive to his life.  He is certain there will obstacles he has to overcome but he is more ready than he has ever been in his life to face them in a manner that will bring only positive results.

4.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); two South Carolina Department of Corrections Certificate of Completion; a Certificate of Baptism, dated 29 November 2009, and a South Carolina Work Ready Certificate, dated 28 November 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 enlisted in the Regular Army on 1 October 1985.  He successfully completed the required training and he was awarded military occupational specialty 72E (Tactical Telecommunications Center Operator).

3.  His record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:

* 14 April 1987 for failing to report to morning formation
* 1 August 1987 for failing to be present for duty 
* 2 August 1987 for failing to report to a mandatory formation

4.  On 11 August 1987, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty.

5.  His additional disciplinary history includes his acceptance of general counseling statements on the following dates:

* 9 September 1987 for failing to report to a mandatory formation
* 14 September 1987 for failing his Skills Qualification Test (SQT)
* 15 September 1987 for failing to go at the time prescribed to his appointed place of duty

6.  On 10 October 1987, he accepted NJP under Article 15, UCMJ, for wrongfully using marijuana and cocaine.

7.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 13 October 1987, shows the applicant was barred from reenlistment based on receiving two Article 15s and for being counseled on numerous occasions for not being at his appointed place of duty and disobeying lawful orders.  He elected not to submit a statement in his own behalf.

8.  A DD Form 458 (Charge Sheet), dated 19 November 1987, shows charges were preferred against the applicant for being AWOL for the period 19 October 1987 through 18 November 1987.

9.  After consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He acknowledged in his request that he understood he could be discharged under other than honorable conditions, that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to make a statement in his own behalf.

10.  On 23 December 1987, the appropriate authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10 and directed the applicant be reduced to the lowest enlisted grade and furnished an Under Other Than Honorable Conditions Discharge Certificate. Accordingly, on 11 January 1988, the applicant was discharged with an under other than honorable conditions discharge.  He completed 2 years, 2 months, and 10 days of total active service with 30 days of time lost due to AWOL.

11.  The applicant provided two Certificates of Completion that show he successfully completed job development and alcohol and drug abuse classes in December 2008.  In addition, he provided a Certificate of Baptism, dated November 2009, along with a Work Ready Silver Award Certificate.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is normally considered appropriate.

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 post-service conduct is noteworthy.  However, good post-service conduct alone is not a basis for upgrading a discharge and is insufficient to mitigate his indiscipline while in the Army.

2.  His voluntary administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  The evidence of record shows he received two Article 15s, he wrongfully used cocaine and marijuana, he failed to go at the time prescribed to his appointed place of duty on several occasions, he was barred from reenlistment, he missed mandatory formations, and he had one instance of extended AWOL.  Based on these facts, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a general or an honorable discharge.

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)                                         AR20100013593



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ABCMR Record of Proceedings (cont)                                         AR20100013593



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