IN THE CASE OF: 

		BOARD DATE:  6 December 2011

		DOCKET NUMBER:  AR20110011523


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 was having problems with alcohol during his time in the service.  He did not complete alcohol rehabilitation and he was not offered more help to stop drinking.  He was discharged after a driving under the influence (DUI) incident involving an accident.  He wanted several times to reenlist to do the right thing and finish his service with an honorable discharge.  It has always bothered him that he did not receive an honorable discharge; however, his discharge was general under honorable conditions.  He served proudly and wanted to do the right thing.  He just had a drinking problem that he has control of now.  He lost partial hearing in both ears, but has never gone to the Department of Veterans Affairs (VA), and he would not with the general discharge.

3.  The applicant did not provide any additional documentation.
 
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 22 October 1987.  He completed training and was awarded military occupational specialty 95B (Military Police).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

	a.  item 5 (Oversea Service) he served in the U.S. Army Europe (Germany) from 27 April 1988 through 5 November 1989; and

	b.  item 9 (Awards, Decorations and Campaigns) the:

* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Pistol (9mm) Bar
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar
* Marksman Marksmanship Qualification Badge with Rifle (M-16) and Pistol (.45 Cal) Bars

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on:

	a.  18 August 1988, for failing to obey a lawful command from a commissioned officer by wrongfully using a military telephone to make a personal call to the United States;

	b.  27 February 1989, for failing to obey a lawful order from a specialist by not moving a weight bar from behind his bed or cleaning the mud from his boots; and

	c.  23 June 1989, for failing to obey a lawful command from a commissioned officer by wrongfully possessing and consuming alcoholic beverages while enrolled in the Drug and Alcohol Program.


5.  On 20 August 1989, he was operating a passenger car while drunk and he rammed his vehicle into a cyclist causing its rider to sustain a broken shin.  Additionally, he wrongfully left the scene of that accident without providing assistance to the person who was injured.

6.  On 27 September 1989, he accepted NJP under Article 15, UCMJ, for operating a passenger car while drunk, reckless driving, and leaving the scene of an accident.

7.  On 23 October 1989, the applicant's unit commander notified him that he was initiating action to discharge him under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12c, for the commission of a serious act of misconduct.  He cited the four Article 15's as the reason for the proposed action.  The applicant was advised of his rights and of the separation procedures involved.

8.  On 23 October 1989, the applicant waived his right to consult with counsel and he elected to not submit a statement in his own behalf.

9.  On 23 October 1989, the unit commander recommended the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c.

10.  On 27 October 1989, the appropriate authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c for committing a serious act of misconduct, with a General Discharge Certificate.

11.  On 6 November 1989, the applicant was discharged accordingly.  He completed 2 years and 15 days of creditable active service.

12.  The applicant's record is void of any documentation pertaining to his enrollment/disenrollment in the Drug and Alcohol Program.

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

14.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A dishonorable discharge was authorized for offenses under Article 111, for drunk driving, and Article134, for leaving the scene of an accident involving an injury without providing assistance.

15.  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.  

16.  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 administrative 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 reasons therefore were appropriate considering all the facts of the case.

2.  Although the applicant states he did not complete alcohol rehabilitation and he was not offered more help to stop drinking, it appears he was ultimately disenrolled from the Drug and Alcohol Program as a result of his continued possession and consumption of alcohol while in the program and his DUI incident.

3.  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)                                         AR20110011523



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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