IN THE CASE OF:	  

		BOARD DATE:	  15 July 2014

		DOCKET NUMBER:  AR20130020293 


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 general discharge (GD) to an honorable discharge (HD).

2.  The applicant states his leadership didn't send him to the required substance abuse counseling that Soldiers get now.  He states if he would have had that opportunity he would have been a better Soldier then and is a better person now due to his military service.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 5 August 1989
* DD Form 214 for the period ending 28 June 1994
* DA Form 2-1 (Personnel Qualification Record)
* letters of support submitted during his discharge proceedings 

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 14 February 1992, with prior Army National Guard service, he enlisted in the Regular Army.  The highest rank he held was specialistSPC/pay grade E-4.

3.  Effective 7 July 1993, he was informed in writing that his privilege to operate a privately-owned vehicle (POV) was suspended for 1 year due to his apprehension for drunk driving.  On the same date he acknowledged receipt of his notification. 

4.  On 20 July 1993, pursuant to his guilty plea, the State Court of Liberty County, GA, found him guilty of the offenses of loud music and driving under the influence (DUI).  He was allowed to serve his sentence of 12 months of confinement on probation.

5.  On 22 July 1993, he received general counseling regarding the above-related court proceedings.  The counseling form shows he was interviewed by his commander.  His commander stated the applicant's driver license was suspended until his completion of the Alcohol and Drug Abuse Prevention classes on Fort Stewart GA. 

6.  On 26 March 1994, he was issued a traffic ticket for making an improper left turn, driving on post with a revoked license, and DUI refusal.  A DD Form 1920 (Alcoholic Influence Report) shows on 26 March 1994 he was noticed to have a strong odor of alcoholic beverage; had what appeared to be a beer bottle in his left hand; displayed a wobbling balance and unsure walk, both obvious effects of alcohol; and was unfit to drive. 

7.  On 27 March 1994, he was informed in writing that his privilege to operate a POV was being temporarily suspended for 5 years due to his refusal to take or complete a lawfully-requested chemical test for blood alcohol content.  He acknowledged receipt of the memorandum of notification.

8.  On 28 March 1994, he was counseled for his failure to maintain standards that the Army required.  The counseling statement states he drank and then operated a motor vehicle on a military post while under suspension.  He also drank while enrolled in a drug and alcohol program and it was his second offense.  He entered a remark on the counseling form that he was not enrolled in a drug and alcohol class at the time that he received the DUI and that he enrolled and finished a long time after the first incident and he was finished a long time before this second incident.  

9.  On 18 May 1994, his commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph 
14-12c, for commission of a serious offense and informed him of his rights.  He informed the applicant he was recommending separation because of his two DUIs and driving under suspension.

10.  On 18 May 1994, his commander submitted a recommendation that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.  His commander recommended that the applicant receive an HD.

11.  On 19 May 1994, the applicant consulted with counsel who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights.

12.  After consulting with counsel, he acknowledged he could expect to encounter substantial prejudice in civilian life if a GD were issued to him.  He elected to submit statements in his own behalf.  Therein, he stated that he believed he should be retained in the military because he was a hard-working Soldier who trained hard to benefit the Army in its everyday missions.  He stated that he greatly regretted doing what he did.

13.  He provides letters of support from two Soldiers which were submitted during his separation proceedings.  These letters portray him as a hard-working Soldier worthy of consideration for retention in the Army.

14.  An intermediate commander recommended he be given a GD.  On 17 June 1994, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed he receive a GD Certificate.  

15.  On 28 June 1994, the applicant was discharged with a GD after completing 2 years, 4 months and 15 days of net active service in addition to his prior inactive service.

16.  There is no evidence showing the applicant 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.  

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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 GD if such is merited by the Soldier’s overall record.  

	b.  Paragraph 3-7a provides that an HD 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.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to his contention that his leadership didn't send him to the required substance abuse counseling, evidence shows he stated on a counseling form that he had enrolled and finished a drug and alcohol class after the first DUI incident and before his second incident.  Therefore, his contention is not a mitigating factor in this case.

2.  The available evidence does not support the applicant's request for an upgrade of his GD to an HD.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  Therefore, it appears his overall duty performance was considered when he was given a GD.  The evidence shows he was properly and equitably discharged 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 record supports the reason and authority for discharge shown on his DD Form 214. 



3.  His separation was due to his two DUIs and driving under suspension.  This record of indiscipline is a significant breach of the conduct expected of a Soldier; therefore, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Accordingly, he is not entitled to an HD.

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)                                         AR20130020293



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ABCMR Record of Proceedings (cont)                                         AR20130020293



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