IN THE CASE OF:	  

		BOARD DATE:	  8 May 2012

		DOCKET NUMBER:  AR20110021692 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* He served his country with the utmost regard and passion; he was simply immature at the time but he has learned from his mistakes
* He was involved in a series of incidents related to alcohol and he was diagnosed with alcoholism and depression in 2000; therefore, he believes he is genetically predisposed to alcoholism;
* He has successfully underwent treatment, been sober for several years, improved his education, and is trying to become a contributing member of society 

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2-1 (Personnel Qualification Record)
* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* Discharge orders
* Letters of support



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 record shows he enlisted in the Regular Army on 1 May 1979. He completed basic combat and advanced individual training and he was awarded military occupational specialty 32D (Station Technical Controller).  

3.  He served in Korea from 3 January to 9 June 1980.  The highest rank/grade he attained during his military service was private/E-2.

4.  On 3 December 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in language towards a noncommissioned officer (NCO). 

5.  On 10 June 1980, he was convicted by a special court-martial of three specifications of failure to repair and one specification of larceny.  He was sentenced to a forfeiture of pay and confinement for 3 months. 

6.  His records reveal additional acceptance of NJP under the provisions of Article 15 of the UCMJ on/for:

* 6 August 1980, being disrespectful in deportment towards an NCO and disobeying a lawful order
* 28 August 1980, disobeying a lawful order
* 11 September 1980, disobeying a lawful order and being absent without leave (AWOL) from 6 to 8 September 1980

7.  A memorandum reveals that after having transferred to the U.S. Army Retraining Brigade, Fort Riley, KS, the applicant's immediate commander indicated the applicant failed to successfully complete the Individual Effectiveness Course (IEC) and the cadre recommended that he be eliminated under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations).  He had received over 30 counseling sessions for misconduct including multiple instances of failing barracks inspection, disrespect towards NCOs, unsecure equipment, a lack of motivation, failure to report, shirking, pass violation, failure to repair, lack of self-discipline, being AWOL, sleeping on fireguard, and other violations.

8.  On 24 September 1980, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct - frequent involvement in incidents of a discreditable nature with civil or military authorities. 

9.  On 26 September 1980, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and a personal appearance before a separation board, and elected not to submit a statement on his own behalf.  

10.  The applicant further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  He further understood that, as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.

11.  The applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 for misconduct due to misconduct- frequent incidents of a discreditable nature.  The immediate commander remarked that the applicant demonstrated little desire of returning to duty.  He received multiple counseling by members of the leadership and staff agencies but he failed to react constructively to the rehabilitative program.  He failed to complete IEC and had demonstrated an inability to accept criticism or efforts to improve.  He exhibited a pattern of misconduct and he had been counseled multiple times by his chain of command. 

12.  On 26 September 1980, the applicant’s intermediate commander recommended approval of the discharge. 



13.  On 3 October 1980, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 due to misconduct and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  Accordingly, the applicant was discharged on 
8 October 1980.

14.  The DD Form 214 he was issued confirms he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - frequent involvement in incidents of a discreditable nature with civil and/or military authorities, with service characterized as under other than honorable conditions.  This form further confirms he completed a total of 1 year, 3 months, and 14 days of creditable active military service and he had lost time from 6 to 7 September 1980 and from 10 June to 31 July 1980.

15.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  The applicant submitted:  

	a.  Character reference letter, dated 1 October 2011, from a retired Marine who describes him as a selfless and dedicated individual. 

	b.  Letter, dated 29 September 2011, from a veteran's case manager, who describes the applicant as making improvements in various aspects of his life.

	c.  Letter, dated 20 September 2011, from an individual who describes the applicant as a professional. 

	d.  Letter, dated 31 August 2011, from a rehabilitation counselor who describes the applicant as a committed and diligent individual. 

17.  Army Regulation 635-200, in effect at the 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 frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority could direct an honorable or general discharge if such were merited by the Soldier's overall record.

18.  Army Regulation 635-200, paragraph 3-7a, states 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.

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 applicant’s record of service shows a history of misconduct that included a court-martial conviction, an instance of AWOL, four instances of NJP, and an extensive history of negative counseling.  He was sent to the retraining brigade correctional training but failed to improve his attitude and ability.  He demonstrated little desire to return to duty and despite receiving considerable counseling, he did not respond favorably.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  The applicant's discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  His repeated misconduct and failure to respond to counseling by members of his chain of command diminished the quality of his service.  

3.  Based on the applicant's record of indiscipline his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.









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)                                         AR20110021692



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ABCMR Record of Proceedings (cont)                                         AR20110021692



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