BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100029784 


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 discharge.

2.  The applicant states he has changed his life from 33 years of abusing drugs and alcohol to total abstinence.  On 24 July 2009, he received his third driving under the influence charge within a 30-year period and he has been sober since.  He began attending alcoholics anonymous (AA) meetings and he completed the AA 12-Step Program in October 1999.  He also completed 75 hours of a substance abuse program and now sponsors others at AA meetings.  His discharge was due to his poor performance.  He performed well in controlled environments but when he was assigned to a unit, drugs and alcohol controlled his life.  Prior to going absent without leave (AWOL) proceedings were taking place to discharge him from the Army.  He and another Soldier sold and used drugs and he felt he would be put in the stockade so he did not return.  He wishes he had made a better decision.

3.  The applicant provides:

* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* His DD Form 149 (Application for Correction of Military Records), dated 28 February 1989
* A page entitled "AA Club"
* A page entitled "Discharge Summary"


* Three character reference letters to the circuit judge of Madison County, two undated and one dated 13 January 2010
* A letter of appreciation, dated 11 March 2010
* A letter from Intensive Out-Patient Care, Edwardsville, IL, dated 29 March 2010
* A letter of employment verification, dated 14 October 2010

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 entered initial active duty for training (IADT) as a member of the U.S. Army Reserve (USAR) on 15 August 1980.  Upon completion of his training, he was awarded military occupational specialty 19E (Armor Crewman).  He was honorably released from IADT on 21 November 1980 and he was transferred to the USAR.

3.  He enlisted in the Regular Army on 26 February 1981.  He was assigned to the 1st Battalion, 66th Armor, 2nd Armored Division, Fort Hood, TX.

4.  On 27 May 1981, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for violating a lawful general regulation by failing to carry his weapon with him at all times and for dereliction of duties for sleeping while on duty as a radio watch on three separate occasions.

5.  On 4 September 1981, he received NJP under the provisions of Article 15, UCMJ for being disrespectful in language to a noncommissioned officer (NCO) and for failing to go at the time prescribed to his appointed place of duty.  His 


punishment was to be confined for 14 days.  He was confined at the 2nd Armored Division Correctional Custody Facility (CCF), Fort Hood, TX.

6.  On 7 October 1981, he was convicted by a summary court-martial of two specifications of disobeying a lawful written order and breaking restriction while being confined at the 2nd Armored Division CCF.  He was sentenced to confinement for 30 days and reduction in rank/grade to private/E-1.  He was confined at the U.S. Army Retraining Brigade, Fort Riley, KS.

7.  He received further NJP under the provisions of Article 15, UCMJ, as follows:

* On 17 February 1982, for disobeying a lawful order from an NCO on
29 January 1982
* On 6 May 1982, for three specifications of disobeying a lawful order from an NCO between 23 and 27 April 1982, and failing to go at the time prescribed to his appointed place of duty on 27 April 1982
* On 3 June 1982, for three specifications of disobeying a lawful order from a commissioned officer between 16 and 22 May 1982, disobeying a lawful order from an NCO on 25 May 1982, and failing to go at the time prescribed to his appointed place of duty on 25 May 1982
* On 17 June 1982, for being disrespectful in language to an NCO on
9 June 1982, disobeying a lawful order from an NCO on 9 June 1982, disobeying a written lawful order by a commissioned officer on 9 June 1982, and two specifications of failing to go at the time prescribed to his appointed place of duty on 9 and 11 June 1982

8.  17 June 1982, he was notified by his unit commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, due to misconduct because of his continuous willful acts in violation of the UCMJ and civil laws.  He acknowledged notification of his proposed discharge from the Army.

9.  On 18 June 1982, a DA Form 4126-R (Bar to Reenlistment Certificate) against him was approved by the appropriate authority.  He was not recommended for further military service due to his apathy towards the Army and his unwillingness to accept responsibility as a Soldier.

10.  On 28 June 1982, he received another NJP under the provisions of
Article 15, UCMJ for breaking restriction on 18 June 1982.



11.  On 28 June 1982, he consulted with legal counsel.  He was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; the possible effects of an other than honorable discharge; and of the procedures and rights that were available to him.  He further 
acknowledged he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.

12.  On 17 July 1982, he was reported AWOL from his assigned unit.

13.  On 19 July 1982, his chain of command recommended approval of his discharge under the provisions of Army Regulation 635-200, chapter 14, due to frequent and numerous acts of misconduct.

14.  On 28 July 1982, the separation authority approved his discharge under Army Regulation 635-200, chapter 14, for misconduct and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 

15.  On 5 August 1982, he was discharged from the Army while in an AWOL status.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - frequent incidents of a discreditable nature with civil or military authorities.  He completed 1 year, 3 months, and 27 days of active service with 44 days of time lost during the period under review.

16.  On 10 May 1985, the Army Discharge Review Board denied his request for a change in the character and/or reason for his discharge and determined he was properly and equitably discharged.

17.  On 4 March 1987, the ABCMR denied his request for an upgrade of his discharge from under other than honorable conditions to an honorable discharge.

18.  Army Regulation 635-200, in effect at that time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included 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.  



19.  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.  The evidence of record shows the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the summary court-martial and numerous Article 15s for offenses including disobeying written lawful orders, dereliction of duty, disobeying a lawful orders from commissioned officers and NCOs, being disrespectful to NCOs, failing to go at the time prescribed to his appointed place of duty, and for breaking restriction.  Accordingly, his unit commander initiated separation action against him.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to a general discharge or an honorable discharge.

3.  Although the applicant's post-service conduct may be noteworthy, it does not mitigate the fact that he committed numerous acts of misconduct during his military service.

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)                                         AR20100029784



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ABCMR Record of Proceedings (cont)                                         AR20100029784



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