IN THE CASE OF:	  

		BOARD DATE:	    16 August 2012

		DOCKET NUMBER:  AR20120002565 


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 undesirable discharge.

2.  The applicant states no one in authority gave him a chance to seek alcohol and drug counseling like he is getting today.  He was a functional alcoholic and addict.

3.  The applicant provides no additional evidence.

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 records show he enlisted in the Regular Army on 30 September 1974 and he held military occupational specialty 94B (Cook).  He was assigned to the 92nd Engineer Battalion, Fort Stewart, GA, on 20 February 1975.

3.  On 25 April 1975, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to report to his appointed place of duty.

4.  On 12 May 1975, he received NJP under the provisions of Article 15, UCMJ, for being absent without leave (AWOL) from 30 April to 2 May 1975 and for violating a general regulation by storing his military rifle in his personal wall locker.

5.  On 7 July 1975, he received NJP under the provisions of Article 15, UCMJ, for:

* assaulting another Soldier by striking him with a broom handle
* assaulting a second Soldier by striking him with a broom handle and breaking his arm

6.  On 13 August 1975, a Bar to Enlistment/Reenlistment Certificate was placed against him.  The commander cited the applicant's three Article 15s and a letter of indebtedness as the reason for the bar.  The commander further stated the applicant had been repeatedly counseled for his misconduct that resulted in the Article 15s, in addition to uniform violations, improper parking, and his bad attitude.

7.  On 25 October 1975, he was convicted by a special court-martial of:

* one specification each of disobeying a lawful order from a commissioned officer, being AWOL from 7 to 8 August 1975, wrongfully engaging in a fist fight; and wrongfully engaging in provoking words and gestures
* two specifications each of being disrespectful in language toward an noncommissioned officer (NCO) and disobeying a lawful order from an NCO

8.  He was sentenced to reduction to the private/E-1, forfeiture of $240.00 per month for 3 months, and confinement for 2 months.  

9.  Between 18 and 20 November 1975, he was counseled on numerous occasions for various infractions including his poor/negative attitude, disrespect to a guard, communication of a threat, destruction of government property, refusal to take prescribed medication, laying on the cell floor during duty hours, and repeatedly disobeying lawful orders.
10.  On 12 December 1975, he was notified by his immediate commander of the commander's intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unfitness, due to frequent incidents of discreditable acts. 

11.  On 18 December 1975, he consulted with legal counsel and he was advised that discharge action was being initiated against him under the provisions of Army Regulation 635-200, chapter 13; the effect on future enlistment in the Army; the possible effects of an undesirable discharge under conditions other than honorable; and of the procedures and rights that were available to him.  He further acknowledged he understood if he were issued an undesirable discharge he could expect to encounter substantial prejudice in civilian life and he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  He waived consideration of his case by a board of officers and he elected not to submit a statement in his own behalf.

12.  On 23 December 1975, the applicant's senior commander recommended approval of his discharge under the provisions of Army Regulation 635-200, chapter 13, for unfitness. 

13.  On 29 December 1975, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 13, by reason of unfitness.  He directed the issuance of an Undesirable Discharge Certificate.  On 31 December 1975, the applicant was discharged accordingly.

14.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 13, with an under other than honorable conditions characterization of service and issued of an Undesirable Discharge Certificate.  He completed 1 year, 1 month, and 16 days of total active service with 46 days of time lost due to AWOL and confinement.

15.  His record is void of any evidence that shows he had been identified with an alcohol or drug problem while on active duty.  There is no evidence that shows he requested counseling for an alcohol or drug problem while on active duty. 

16.  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.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, contains the policy and outlines the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

18.  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.

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 NJP he received under UCMJ on three occasions for being absent from his place of duty, AWOL, and assaulting other Soldiers.  In addition, he was convicted by a special court-martial of disobeying lawful orders, being AWOL, being disrespectful, and engaging in fistfights, provoking words, and gestures.  Accordingly, his immediate commander initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13, for unfitness.

2.  There is no evidence in his records and he did not provide any evidence that shows he was ever identified as having a problem with alcohol or drugs and/or was denied counseling for an alcohol or drug problem while on active duty.

3.  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 or an honorable 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)                                         AR20120002565





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ABCMR Record of Proceedings (cont)                                         AR20120002565



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