IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100020268


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 admits he had a drinking problem and he was his own worst enemy.  He claims, however, because his division was moving to Fort Hood, TX, he got denied treatment counseling that was available at Fort Polk, LA.  He claims he was denied treatment because the Army was downsizing at the time.

3.  The applicant provides no documentary 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 record shows he served in the Army National Guard (ARNG) from 29 April 1979 through 13 June 1980.  He enlisted in the Regular Army on
10 July 1980.  He served in military occupational specialty (MOS) 11C (Indirect Fire Infantryman) until 16 May 1084, at which time he was reclassified into MOS 54E (Nuclear, Biological, Chemical (NBC) Specialist).  

3.  The applicant’s record shows he was promoted to sergeant (SGT)/E-5 on
23 November 1982, and this is the highest rank/grade he attained while serving on active duty.  It also shows he was reduced to specialist (SPC)/E-4 for cause on 9 September 1991.

4.  The record reveals a disciplinary history that includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:

	a.  24 June 1988, for failing to go to his prescribed place of duty at three separate appointed times on or about 17 May 1988; and

	b.  9 September 1991, for disobeying  a lawful order.

5.  On 24 September 1991, the applicant was notified by his unit commander of the intent to initiate separation action against him under the provisions of paragraph 14-12c, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct - commission of serious offense.  The unit commander cited the applicant’s driving while intoxicated (DWI), reckless driving, record of NJP, and a General Officer Memorandum of Reprimand (GOMOR) as the basis for taking the action.  

6.   On 28 September 1991, after being advised of the basis for the contemplated separation action and its effects, the applicant completed a request for conditional waiver in which he agreed to waive consideration of his case by an administrative separation board contingent on receiving an honorable discharge.

7.  On 20 November 1991, the separation authority disapproved the applicant’s request for a conditional waiver.

8.  On 13 February 1992, an administrative separation board convened to consider the applicant’s case.  After hearing all testimony and reviewing all evidence, the board found by a preponderance of the evidence that each allegation in the notice of separation was supported.  Based on its findings, the board recommended the applicant be separated from the service with a general discharge.

9.  On 28 February 1992, the separation authority approved the applicant’s separation under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed the applicant receive a general discharge.  On 18 March 1992, the applicant was discharged accordingly. 

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant at the time of his discharge shows he held the rank/grade of SPC/E-4 and completed a total of 11 years, 8 months, and 9 days of creditable active military service.

11.  The applicant's record does not document any acts of valor.  However, item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* Army Commendation Medal
* Army Achievement Medal (2nd Award)
* Army Service Ribbon
* Army Good Conduct Medal (2nd Award)
* Noncommissioned Officer Professional Development Ribbon with
Numeral 2
* National Defense Service Medal
* Overseas Service Ribbon with Numeral 2

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

13.  Army Regulation 635-200 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.


14.  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 contention that his discharge should be upgraded to an honorable discharge because he was denied treatment for alcohol abuse has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was discharged for misconduct based on commission of a serious offense based on his misconduct which included a DWI offense, reckless driving, NJP, and a GOMOR. 

3.  By regulation, an under other than honorable conditions discharge is normally appropriate for a member separated by reason of misconduct.  Clearly, the length and honorable nature of the applicant's overall record of service was the basis for him receiving a general discharge instead of an under other than honorable conditions discharge.  However, it is equally clear his record of misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge.  Therefore, it would not be appropriate to upgrade his discharge at this late date.

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)                                         AR20100017826



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ABCMR Record of Proceedings (cont)                                         AR20100020268



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