BOARD DATE:	  4 May 2011

		DOCKET NUMBER:  AR20100025958 


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:

* there is no error
* he suffers from alcoholism
* he was wrong in his actions
* he is currently enrolled in the Department of Veterans Affairs (DVA) Outpatient Substance Abuse Clinic (OSAC) program
* he believes a change in his discharge would help in his recovery and self-esteem
* it would also be something his son and family could be proud of

3.  The applicant provides documentation from the DVA.

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 20 January 1982 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 15D (lance crewmember/multiple launch rocket system).

3.  On 23 February 1984, nonjudicial punishment (NJP) was imposed against the applicant for wrongfully using marijuana.  

4.  He was counseled for:

* being late for duty and missing formation on 19 June 1984
* not supporting his dependents on 11 September 1984
* being drunk and disorderly on 17 October 1984

5.  On 12 October 1984, NJP was imposed against the applicant for participating in a breach of peace, failing to obey a lawful general regulation, and being drunk and disorderly.

6.  On 6 December 1984, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct - minor disciplinary infractions.  His unit commander stated that despite numerous counseling sessions from his battery commander, first sergeant, and section chief concerning his misconduct the applicant had continued to demonstrate conduct which was unacceptable for a Soldier in the Army.

7.  On 6 December 1984, the applicant consulted with counsel, waived his rights, and acknowledged he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also elected not to submit a statement in his own behalf.

8.  On 20 December 1984, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.


9.  He was discharged accordingly on 8 January 1985 under the provisions of Army Regulation 635-200, paragraph 14-12a, for misconduct - minor disciplinary infractions.  He had served 2 years, 11 months, and 19 days of creditable active service.

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

11.  Army Regulation 635-200 (Personnel 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, 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.

12.  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.  He contends a change in his discharge would help in his recovery and self-esteem.  However, his record of service included adverse counseling statements and two NJPs.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.


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

4.  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)                                         AR20100025958



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ABCMR Record of Proceedings (cont)                                         AR20100025958



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