IN THE CASE OF:	

		BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110009915 


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.

2.  He states he believes other options such as detoxification and rehabilitation or something that could have helped him with his addiction to alcohol could have "straightened out his life in service."

	a.  He states that before joining the Army he had the tragedies of his mother and grandmother passing away.

	b.  He states after completing active duty for training with the Army National Guard (ARNG) he asked to serve on active duty.  He adds that during his active duty time his drinking increased which led to his being arrested for driving under the influence and being absent without leave (AWOL) which was the reason for his discharge from the military.

   c.  He states that after his separation from the military he went into rehabilitation and stopped drinking alcohol for 5 years.  He states he then started using drugs and was arrested in 1993 and sentenced to 6 months in jail.  He states he earned his General Educational Development (GED) Diploma after his release from confinement.  He then joined a church and has been gainfully employed since September 1994, has served as scoutmaster, and belongs to various groups.

	d.  He states that he and his current wife are foster parents and have five children, one of whom they are in the process of adopting.  He states he is a city bus operator, that he helps young men in the community when they need guidance, and is a strong male figure who has done his best to serve the country and the community that he lives in.   

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), GED Diploma, numerous documents including letters of reference, a Cubmaster certificate, Certificate of Ordination (Deacon), certificates of course and training completion, certificate of achievement, a document related to his application to become a foster or adoptive parent, verification of employment, certificate of disposition indictment, a letter indicating Relief from Disabilities (things he is prohibited from doing because of his conviction), Certificate of Relief from Disabilities, and union membership certificate.

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.  His military records show that with prior ARNG and U.S. Army Reserve service he was involuntarily ordered to active duty as a reservist for unsatisfactory participation effective 11 January 1980.  The highest grade he held was pay grade E-3.

3.  He was counseled on numerous occasions for offenses including drinking on duty, improper wear of uniform, being absent from his place of duty, being unshaven, disobeying an order, showing disrespect to a noncommissioned officer, being ticketed for failure to have required vehicle insurance, and several other infractions.

4.  On 18 March 1981, he was barred from reenlistment.  The DA Form 4126-R (Bar to Reenlistment Certificate) shows he received nonjudicial punishment (NJP) for failure to repair, non-payment of debts (eight checks with insufficient funds), and conviction in Montgomery County, TN for passing bad checks.  The commander indicated on this form that the applicant was unable to control his personal affairs despite continued counseling and performed in a marginal manner with only slight improvement.

5.  He accepted NJP on 11 May 1981 for being AWOL during the period 
28-30 April 1981.

6.  On 1 June 1981, the applicant's commander informed him that he was recommending the applicant's immediate elimination from the military service under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for unsuitability.  His commander indicated his recommendation for the applicant's elimination was based on the following:

* cashing numerous bad checks
* being AWOL for 2 days
* being absent or late from numerous classes when he was enrolled in the Basic Skills Education Program
* substandard performance
* disobeying orders
* having no self-discipline
* constantly being involved with some sort of trouble with civilian authorities
 
7.  On 8 June 1981, the applicant acknowledged he had been advised by counsel of the basis for the contemplated action to separate him for unsuitability under the provisions of chapter 13, Army Regulation 635-200 and its effects; of the rights available to him; and the effect of any action taken by him in waiving his rights.  He did not elect to submit a statement in his own behalf.

8.  On 9 June 1981, the separation authority approved the recommendation for separation under the provisions of chapter 13, Army Regulation 635-200, for unsuitability.  He directed the applicant be discharged from the service and given a general discharge.

9.  On 7 July 1981, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, by reason of unsuitability-apathy, defective attitude or inability to expend effort constructively.  He was given a general discharge.  The DD Form 214 issued to him shows he completed 1 year, 5 months, and 25 days of active duty during this period of 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 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unsuitable for further military service.  It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record. 

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.  The applicant's records indicate he was counseled in regard to his repeated passing of bad checks, repeated failure to go to his appointed place of duty, unproductive attitude, and failure to repair.  His records show he accepted NJP for being AWOL for 2 days.  He could have referred himself into a substance abuse program.  Such conduct would certainly warrant an administrative separation from the Army.

2.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

3.  The available evidence confirms his rights were protected throughout the discharge process.

4.  While the applicant's good post-service conduct, service in the community and his steady employment history is commendable, none of these factors, either individually or in sum, is so meritorious as to warrant the relief requested.

5.  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)                                         AR20110009915



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ABCMR Record of Proceedings (cont)                                         AR20110009915



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