IN THE CASE OF:	  

		BOARD DATE:  12 November 2013

		DOCKET NUMBER:  AR20130005919 


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 under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

2.  The applicant states he was 23 years of age when he enlisted in the New York Army National Guard (NYARNG) in 1971.  While in the NYARNG he developed a drinking problem causing him to miss a few meetings.  He was subsequently ordered to active duty, but his drinking problem only worsened.  He was absent because he got drunk and took leave without asking for permission.  He always came back.  They knew he had this alcohol problem, but they never helped him.  Instead, they fined him and assigned him to the Retraining Brigade.

3.  The applicant further stated that his mother had passed away.  Also, that he was gay.  He was afraid they would find out he was gay.  That is why he went absent without leave (AWOL).  He paid his fines every time he went AWOL and always came back to his unit.  He also finished his training.  He went to see a friend in town and did not make it back to where he was supposed to sleep.  The next morning when he got back he found his locker empty.  He was given a UOTHC discharge.

4.  The applicant states he was never offered any help for his alcohol problem.  After his experience with the Army, he went to India where he was initiated by a Guru/Sadu.  He stopped drinking altogether.  Now he is 55 years of age.  His previous alcohol problem has left him with cirrhosis of the liver and hepatitis C, for which he is being treated.  He was young and had so many problems while in the Army.  They had no mercy for him.  They just kicked him out without considering that he had completed his training and had paid his dues.  Nothing was explained to him.  He was just given the paper and told he was out of the Army.  He was never given an opportunity for rehabilitation.  He was forced out before completion of his service obligation.

5.  The applicant provides a copy of 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.  On 23 June 1977, the applicant enlisted in the Massachusetts Army National Guard (MAARNG) and as a Reserve of the Army for a period of 6 years.  He was subsequently ordered to active duty training (ADT) on 21 August 1977.  He completed ADT and was awarded military occupational specialty 13B (Cannon Crewman).  He was released from ADT and transferred back to the MAARNG.

3.  On or about 30 April 1979, the applicant was involuntarily ordered to active duty.

4.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows the applicant was AWOL or imprisoned during the following periods:

* 19 June to 3 August 1979 for 46 days
* 3 to 11 July 1980
* 12 to 28 October 1980
* 5  and 6 November 1980
* 7 November to 11 December 1980

5.  The applicant accepted nonjudicial punishment (NJP) on 6 August 1980 for being AWOL from 3 to 11 July 1980.
6.  On 18 November 1980, the applicant was convicted by a summary court-martial of the following offenses:

* Disobeying a lawful order
* AWOL from 12 to 29 October 1980
* AWOL from 5 to 7 November 1980
* AWOL on 13 September 1980
* Attempted escape on 7 November 1980

7.  On 23 January 1981, at a mental status evaluation, the applicant's behavior was normal.  He was fully alert and oriented and displayed a level mood.  His thinking was clear, his thought content normal and his memory was good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right and capable of participating in the separation processing.

8.  On 30 January 1981, the applicant's commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to his frequent involvement in incidents of a discreditable nature.  The applicant's conduct and efficiency were unsatisfactory.

9.  On 24 February 1981, the applicant consulted with counsel concerning his rights.  He elected not to make a statement in his own behalf and waived counsel and representation.

10.  On 3 March 1981, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a UOTHC Discharge Certificate.

11.  On 4 March 1981, the applicant was accordingly discharged.  He had completed 1 year, 4 months and 27 days of creditable active duty service during the period under review.

12.  In 1982, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  The ADRB considered his request and notified him in November 1982 that the ADRB had determined he had been properly discharged.  Accordingly, he was advised that his request for a change in the nature and type of his discharge was denied.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include frequent involvement in incidents of a discreditable nature with civil or military 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.

	b.  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.

	c.  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 contends that his discharge should be upgraded to honorable because he was young and had a problem with alcohol.  He argues that he was not given the help he needed.

2.  The record shows the applicant was AWOL on numerous occasions and received NJP and a summary court-martial for his misconduct.

3.  There is no available evidence of record showing that he had an alcohol problem, or that such problem was a direct or indirect cause or mitigating factor for his misconduct.  Even if he did, he could have referred himself for treatment.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

7.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130005919





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ABCMR Record of Proceedings (cont)                                         AR20130005919



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