IN THE CASE OF:	  

		BOARD DATE:	    7 December 2010

		DOCKET NUMBER:  AR20100014582 


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 discharged following his driving under the influence.  He was celebrating with friends and had just graduated from advanced individual training (AIT).  He was stopped for speeding and he refused to take a breathalyzer test.  According to the subsequent blood test, his blood alcohol level exceeded the legal limit.  He had never been in any trouble before this incident.  He does not believe he should have been discharged and labeled following just one incident.  It should not have cost him his military career and it should not follow him for the rest of his life.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active duty).

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 records show:

	a.  he enlisted in the Regular Army on 28 October 1987;

	b.  he completed basic combat training at Fort Leonard Wood, MO; and

	c.  he was enrolled in AIT at Lowery Air Force Base for training in military occupational specialty 35H (Calibration Specialist).

3.  On 16 November 1988, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for operating a passenger car while drunk, for disobeying a lawful order by wrongfully driving a privately own vehicle, and for wrongfully missing bed check.

4.  On 22 November 1988, the applicant was notified by his commander that he was being considered for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance, because his retention would have an adverse impact on military discipline, good order, and morale.  His ability to perform effectively in the future, including potential for advancement, was unlikely.  The commander stated the following reasons for this action:

	a.  a letter of reprimand for refusing to take a breathalyzer examination;

	b.  NJP for drunk driving;

	c.  command referral for alcohol abuse; and

	d.  counseling on six occasions for adverse behavior that included failure to report for training, negative attitude, missing mandatory bed check, and not shaving prior to morning formation or in preparation for duty.

5.  The applicant consulted with counsel.  He acknowledged his rights and that he intended to submit a statement in his own behalf.  There is no evidence of record showing that he made such a statement.

6.  The appropriate authority approved the recommendation and directed the issuance of a General Discharge Certificate.

7.  Accordingly, he was discharged on 23 December 1988 with a general discharge.  He completed 1 year, 1 month, and 6 days of total active service.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.


4.  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)                                         AR20100014582



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ABCMR Record of Proceedings (cont)                                         AR20100014582



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