BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20130003096 


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 character of service from under other than honorable conditions to under honorable conditions (general).

2.  The applicant states the character of service is unjust.  He needed help with his problem and none was offered.  He was never given the opportunity to receive treatment; he was simply discharged.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 was appointed as a Reserve commissioned officer on 20 June 1980 and served in the U.S. Army Reserve (USAR).  He entered active duty on 26 September 1982 to attend the Officer Basic Course (OBC).

3.  His record contains an undated statement from First Sergeant (1SG) RLW which shows, on 9 November 1982, 1SG RLW detected the smell of alcohol on the applicant's breath, while on duty.  1SG RLW reported the incident to the applicant's senior platoon trainer, Captain (CPT) BWM, and reported him to the training officer.

4.  His record contains an undated statement from his senior platoon trainer, CPT BWM, which shows that on 9 November 1982 1SG RLW informed him that he had detected an odor of alcohol on the applicant's breath.  When CPT BWM spoke to the applicant later he detected an odor of alcohol on his breath, his eyes appeared glassy, and his speech was somewhat slurred.  He asked the applicant to remain in his office and reported to Major (MAJ) BFT, the commanding officer, that he suspected the applicant had been drinking on duty.  MAJ BFT called the applicant into his office and advised him of his rights under Article 31 of the Uniform Code of Military Justice (UCMJ) and then questioned the applicant about where he had been and whether he had been drinking that day.  CPT BWM was directed to take the applicant to the Military Police (MP) station to have his blood alcohol content (BAC) checked.  His BAC registered as .10.  After the BAC was conducted they both reported back to MAJ BFT.

5.  His record contains the reading from his BAC test, dated 9 November 1982 at 3:07 PM.  The BAC reading lists the applicant’s BAC as .10.

6.  His record contains a letter of referral for UCMJ action, dated 10 November 1982, wherein his commander stated:

	a.  The applicant was being referred for UCMJ action for being under the influence of alcohol while on duty on 9 November 1982.  The applicant was sent to the MP station to have a BAC test.  The BAC test confirmed the applicant had a BAC of .10, which indicated that he was legally drunk.  Even after the results of the BAC were made available the applicant denied drinking on duty.  

	b.  The applicant had been late to formation or missed the entire formation three times in the first six weeks of OBC.  His senior platoon trainer personally counseled him on two occasions for these violations and other shortcomings.

	c.  The applicant served as the platoon leader for weeks 1 and 2, and failed in this position.  His major faults were that he never took the initiative to do 
anything, never showed a positive attitude toward the course or his job; and needed to be more aggressive when dealing with his peers.  He was highly unorganized during the two weeks and was never around when he was needed.

	d.  On 3 different occasions, the applicant failed the day portion of land navigation despite receiving individual instruction by two different training officers.

	e.  On 29 October 1982, the applicant failed to successfully pass the graduation prerequisite "Call For and Adjust Indirect Fire" after two attempts.

	f.  The applicant's homework performance has been totally unacceptable.  Of the 13 required homework assignments he failed to turn in 6 assignments on time and failed to turn in 5 assignments at all.  His homework average is 82.9% (percent), which shows he had the ability to perform if he so desired. 

	g.  The applicant missed a total of 16 hours of training on the following dates/blocks of instruction:

* 4 October 1982 (4 hours), leadership counseling, finance appointment
* 6 October 1982 (4 hours), leadership reaction, unexcused car trouble
* 19 October 1982 ( 1 hour), physical training, he overslept
* 3 November 1982 (1 hour), physical training, he overslept
* 3 November 1982 (6 hours), how to kill tanks, hospital appointment

	h.  MAJ BFT highly recommend that the applicant be pulled from training immediately, administered an Article 15, fined, and that board action be initiated to terminate his commission and dismiss him from the United States Army.

7.  On 3 January 1983, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for being found drunk on duty during OBC.

8.  His record contains two DA Forms 4187 (Personnel Action), dated 7 January 1983 and 2 February 1983, which show he was absent without leave (AWOL) from 4 January 1983 to 1 February 1983.

9.  His record is void of any evidence showing he was diagnosed with any physical or psychological illness at the time of his separation.

10.  The complete facts and circumstances surrounding his discharge action are not available for review with this case.  However, his records contain a 
DD Form 214 that shows he was discharged under other than honorable conditions for conduct triable by court-marital on 24 June 1983 under the provisions of Army Regulation 635-120 (Officer Resignations and Discharges), chapter 5.  He completed 8 months and 1 day of creditable active military service and had 29 days of lost time.

11.  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.

12.  Army Regulation 635-120 implemented the statutory provisions of Title 10,
U.S. Code, governing active duty officer resignations and discharges.  Chapter 5 of this regulation provided that an officer could submit a resignation for the good of the service when court-martial charges were preferred against the officer with a view toward trial by general court-martial, the officer was under suspended sentence of dismissal, or the officer elected to tender a resignation because of reasons outlined in Army Regulation 635-100 (Personnel Separations - Officer Personnel), paragraph 5-11a(7) (misconduct or moral or professional dereliction) prior to charges being preferred and prior to being recommended for elimination under the provisions of Army Regulation 635-100.  The regulation provided that a resignation for the good of the service, when approved at Headquarters, Department of the Army, was normally accepted as being under other than honorable conditions.

13.  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 
1–22c, currently in effect, provides that a discharge Under Other Than Honorable Conditions is an administrative separation from the service under conditions other than honorable.  Officers will normally receive an "Under Other Than Honorable Conditions" when they resign for the good of the service, are dropped from the rolls of the Army, are involuntarily separated due to misconduct, moral or professional dereliction, are involuntarily separated for the final revocation of a security clearance as a result of an act or acts of misconduct, including misconduct for which punishment was imposed, and/or are discharged following conviction by civilian authorities.

	a.  paragraph 1-22a provides that an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty for an officer. 

	b.   paragraph 1–22b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to an officer 
whose military record is satisfactory but not sufficiently meritorious to warrant an 
honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his under other than honorable conditions characterization of service should be upgraded to a general characterization of service because he was never given the opportunity to receive treatment for his problem.

2.  His records are void of the specific facts and circumstances surrounding his discharge.  However, his record contains a duly-constituted DD Form 214 which shows he was discharged for conduct triable by court-martial.  It appears that rather than facing the consequences of a trial by court-martial the applicant submitted his resignation for the good of the service, in lieu of trial by court-martial.  In doing so he would have had full knowledge of the consequences of this act.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed that his discharge accurately reflects his overall record of service.  

3.  There is no evidence in this records and he did not provide substantiating evidence that shows he was diagnosed with any physical or psychological illness that required treatment at the time of his separation or that he requested help for such conditions from his chain of command or solicited help from the support channels available at his installation.   

4.  His record shows he accepted NJP for being drunk on duty and had an extended period of AWOL.  As such, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  As such, he is not entitled to 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)                                         AR20130003096





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ABCMR Record of Proceedings (cont)                                         AR20130003096



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