IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110021817 


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 (UOTHC) discharge to an honorable discharge.

2.  He states:

* he was given counseling, but he wasn’t given treatment for alcoholism
* he wasn’t given a full chance to redeem himself, so he wasn’t able to fulfill his duties in the Army
* he served in three campaigns during the Gulf War

3.  He provides:

* Work status record
* Two character references
* Certificate of Appreciation
* Letter of Appreciation
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2-1 (Personnel Qualification Record – Part II)
* Two DD Forms 4 (Enlistment/Reenlistment Document)
* DA Form 1695 (Oath of Extension of Enlistment)
* Reassignment orders



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 2 June 1989.  He completed the required training and was awarded military occupational specialty 31Q (Tactical Satellite Microwave Systems Operator).  He served in Southwest Asia (SWA) from 30 October 1990 to 19 June 1991.  

3.  He was redeployed to SWA on 3 August 1992 and he was discharged on 30 January 1993 for immediate reenlistment.  

4.  He reenlisted on 31 January 1993 for a period of 2 years.  He later extended this period of reenlistment for 20 months.  He departed SWA on 15 February 1993.

5.  Between July 1994 and February 1995, the applicant received numerous adverse counseling statements for failing to report to work call formation, being disrespectful to a noncommissioned officer, being drunk on duty, separation action, and disobeying a lawful order.

6.  He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on three separate occasions:

   a.  On 9 February 1995, failing to go at the time prescribed to his appointed place of duty; being disrespectful in language toward a staff sergeant; and being incapacitated for the proper performance of his duties as a result of wrongful previous indulgence in intoxicating liquor or drugs.
   
   b.  On 10 March 1995, being incapacitated for the proper performance of his duties due to wrongful previous indulgence in intoxicating liquor or drugs.
   
   c.  On 11 May 1995, wrongfully using marijuana between 28 February and 30 March 1995.
   
7.  His service record contains two AE Forms 40-6A (Unit Commander Request for Psychiatric Evaluation), dated 6 and 27 March 1995, which indicate he had been counseled repeatedly and he participated in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  He was given a suspended reduction as another chance to turn his life around, but he was drunk again on duty within a month. 

8.  On 9 May 1995, the company commander notified the applicant of the proposed recommendation to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b for a pattern of misconduct.  The company commander stated the applicant had exhibited a pattern of misconduct in the forms of failure to be at his appointed place of duty, disrespect towards a noncommissioned officer, failure to obey a lawful written order, incapacitated for the proper performance of his duty on two occasions due to overindulgence in intoxicating liquor, and he tested positive for wrongful use of marijuana.  The company commander recommended the applicant be issued a UOTHC discharge.  He was advised of his rights.  

9.  The applicant acknowledged notification of separation action, consulted with legal counsel, voluntarily waived consideration of his case by an administrative separation board, and did not submit statements in his own behalf.

10.  On 11 May 1995, the battalion commander recommended approval with a general under honorable conditions discharge.

11.  On 18 May 1995, the brigade commander recommended approval with a UOTHC discharge.

12.  On 19 May 1995, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct – pattern of misconduct and directed a UOTHC discharge.

13.  He was discharged on 2 June 1995 under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct - pattern of misconduct.  He completed 6 years and 1 day total active military service.  His DD Form 214, shows, in part, he was awarded the Southwest Asia Service Medal with three bronze service stars for his participation in three campaigns in Operations Desert Shield/Desert Storm.  

14.  He provided two character references from his friend and his pastor who attested to his military service, his current drug and alcohol free lifestyle, and current lifestyle as a productive member of his church and community.  

15.  He also provided the following documents:

	a.  Certificate of Appreciation, dated 17 August 2010, presented to him by the Chaplaincy Department of Wayne Scott, for his volunteer work for religious programs.

	b.  Letter of Appreciation, dated 17 August 2010, from the Texas Department of Criminal Justice, thanking him for his continued dedication in providing support to the offenders through programs, classes, and religious services.  

	c.  Work status record as an Electrician, indicating his total average score of 5.17 and comments indicating he passed his spring semester Electrical courses.  He was described as very dependable and learning every day.  

16.  His service record doesn’t indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.  

17.  Army Regulation 635-200 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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.  

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record indicates the applicant was repeatedly counseled and he participated in the ADAPCP.  His contention regarding he was never treated for alcoholism does not justify the patterns of misconduct for which he was discharged.  

2.  The applicant’s service in SWA during three campaigns in the Gulf War is noted.  

3.  His service record shows he received three Article 15s for failing to go at the time prescribed to his appointed place of duty; being disrespectful in language toward a staff sergeant; being incapacitated for the proper performance of his duties as a result of wrongful previous indulgence in intoxicating liquor or drugs, and for wrongfully using marijuana.  In addition, he received adverse counseling statements for various acts of misconduct.  

4.  The applicant's administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of a pattern of misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

5.  The applicant’s character references and his post service achievements were considered.  However, good post service conduct alone is not a basis for upgrading a discharge.

6.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant recommendation of a fully honorable discharge and appropriately characterized his service as UOTHC.  

7.  His service record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting his 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)                                         AR20110021817





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ABCMR Record of Proceedings (cont)                                         AR20110021817



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