BOARD DATE:	  4 January 2013

		DOCKET NUMBER:  AR20120011639 


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 that his undesirable discharge be upgraded.

2.  The applicant states he had a drinking problem while in his sixth year of service.  He has been in recovery for the past 29 years and would like the character of his service changed.  

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 enlisted in the Regular Army on 25 June 1975 for a period of three years.  On 9 January 1978, he reenlisted for a period of six years. 

3.  He accepted nonjudicial punishment on the following dates:

	a.  on 5 December 1978 for two specifications of failing to go at the time prescribed to his appointed place of duty and for departing his place of duty without authority;

	b.  on 12 February 1979 for being drunk and disorderly;

	c.  on 5 April 1979 for disobeying a lawful command from his superior noncommissioned officer (NCO) and for being disrespectful towards his superior NCO;

	d.  on 18 April 1979 for four specifications of disobeying lawful orders from his superior NCO, communicating a threat to his superior NCO, two specifications of being disrespectful towards his superior NCO, treating with contempt his superior NCO by making an obscene gesture with his middle finger, and three specifications of failing to go at the time prescribed to his appointed place of duty; and

	e.  on 18 July 1979 for being absent without leave (AWOL) during the period 11-15 June 1979, two specifications of failing to go at the time prescribed to his appointed place of duty, disobeying a lawful command from his superior NCO, and disobeying a lawful command from his superior commissioned officer.

4.  His military file includes numerous counseling forms that show he was counseled on several occasions for acts of misconduct that include missing formations, fighting other Soldiers, and failure to follow instructions.

5.  His immediate commander provided a lengthy statement, dated 27 August 1979, and pointed out that the statement was necessary in order to reveal the full magnitude of the applicant's misconduct.  In the statement, the commander indicated the applicant had also committed numerous acts of misconduct which were not punished under the Uniform Code of Military Justice because he felt that nonjudicial punishment had no effect on the applicant and had become counterproductive.  The commander further indicated that although the applicant initially had problems caused somewhat by overindulgence of alcohol, this fact had not been true during the last six months due to the fact that only one of the five nonjudicial punishments he received was caused by excessive drinking.  

6.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 28 August 1979.  This evaluation shows his behavior was found to be normal, he was fully alert and oriented, his thinking process was clear, his thought content was normal, and his memory was good.  He was also found to have no significant mental illness, he was mentally responsible, he was able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

7.  On 30 August 1979, the applicant was advised by his unit commander that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14 for misconduct.  The commander cited as the specific reasons for the discharge action the applicant's five nonjudicial punishments which contained numerous charges and specifications that demonstrated a pattern of gross misconduct.  The commander also cited the applicant's little or no regard for the authority of his chain of command and that he had no reservations about disobeying or showing disrespect to any commissioned or noncommissioned officers in the U.S. Army.  The applicant was also advised of his right to:

* consult with legal counsel 
* present his case before an administrative discharge board
* be represented by counsel 
* submit statements in his own behalf
* waive his rights in writing

8.  On 6 September 1979, he consulted with legal counsel and elected to waive his rights.  He acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He further acknowledged he understood that as a result of the issuance of a under other than honorable conditions discharge, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.

9.  On 3 December 1979, a representative from the Office of the Staff Judge Advocate reviewed the discharge action and found it to be legally sufficient.  On the same date, the appropriate separation authority approved the discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.  On 21 December 1979, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 5 months, and 23 days of creditable active duty service and that he accrued 4 days of time lost.  

10.  There is no evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge.

11.  Army Regulation 635-200 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.  

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.

13.  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 contention that his undesirable discharge should be upgraded because he had a drinking problem has been carefully considered.

2.  The available evidence confirms his separation processing was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  He contends his misconduct was as a result of his drinking problem.  However, his commander clearly and convincingly pointed out that his misconduct was not solely as a result of his overindulgence of alcohol.  Additionally, Army Soldiers, whether substance abusers or not, are held to the highest standards of discipline and behavior and are held accountable for unaccepted behavior.  Therefore, his contention is without merit.  

4.  His record of indiscipline includes multiple nonjudicial punishments, multiple counseling sessions for negative behavior, and 4 days lost due to AWOL.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This record of misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general discharge.

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)                                         AR20120011639



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ABCMR Record of Proceedings (cont)                                         AR20120011639



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