IN THE CASE OF:	  

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100024246 


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 under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states he was a good Soldier, being given several battalion coins and an Army Achievement Medal.  But when he was given nonjudicial punishment (NJP) for testing positive on a urinalysis, he was disappointed in himself and was no longer able to imagine him having a successful military career.  This led to three more positive urinalyses and his discharge.

3.  He says his discharge is an embarrassment since his grandfather, father, and uncle all served honorably.  Since his discharge he began to change his life around.  He stopped drinking on 20 March 1995 and has remained clean and sober since then.  He is now working with a volunteer ministry to help homeless veterans, has graduated from college, is an honored member of his church, and has worked as an electronic repair technician for 10 years and is beginning a new career as a commercial truck driver.

4.  The applicant provides 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 military records show that he enlisted in the Regular Army on 3 October 1991, was awarded the military occupational specialty of motor transport operator, and served in Somalia from 8 January to 5 March 1993 and again from 28 September to 12 December 1993.

3.  Between 1 June 1992 and 6 May 1994, the applicant was counseled in writing seven times for not being prepared for inspection, missing formation, personal loan obligations, speeding in a military vehicle, wrecking a military vehicle, not shaving (twice), and being late for work call.

4.  The applicant accepted NJP on 12 January 1994 for wrongfully using a controlled substance (marijuana).

5.  The applicant again accepted NJP on 4 May 1994 for failing to go at the time prescribed to his appointed place of duty.

6.  On 2 June 1994, the applicant's commander notified him of his intent to recommend his discharge for misconduct and of his rights in conjunction with that recommendation.  The applicant's waiver statement is not contained in his records, but his commander stated that he waived his right to counsel.

7.  On the same day the applicant's commander forwarded a recommendation to discharge the applicant for misconduct.  That recommendation was endorsed by the applicant's battalion and brigade commanders.  However, the record does not contain the document approving the applicant's discharge.

8.  On 22 June 1994, the applicant was discharged UOTHC due to misconduct.  The DD Form 214 he was issued shows his awards included the Humanitarian Service Medal, Armed Forces Expeditionary Medal, Joint Meritorious Unit Award, and Army Achievement Medal.

9.  Army Regulation 635-200 (Enlisted Separations) 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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Paragraph 1-18 of that regulation specifies that Soldiers being considered for separation under the provisions of chapters 13, 14, and 15 are entitled to have a board of officers consider their cases unless that right is waived.  When discharge is ordered under this authority, a UOTHC discharge is considered appropriate.  

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.

11.  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.  

DISCUSSION AND CONCLUSIONS:

1.  While the applicant's waiver statement and the approval for his discharge is not contained in his records, a presumption of regularity is presumed, that all requirements were met.  The burden of proving otherwise rests with the applicant.

2.  The applicant was counseled in writing seven times for not being prepared for inspection, missing formation, personal loan obligations, speeding in a military vehicle, wrecking a military vehicle, not shaving (twice), and being late for work call; and he accepted NJP twice, once for wrongfully using marijuana and once for failing to go at the time prescribed to his appointed place of duty.

3.  Such repeated misconduct certainly warranted a UOTHC discharge for misconduct.

4.  While it is commendable that the applicant quit drinking and has become a valued citizen, this is insufficient to change a properly issued discharge.

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)                                         AR20100024246





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ABCMR Record of Proceedings (cont)                                         AR20100024246



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