IN THE CASE OF:	  

		BOARD DATE:	  17 July 2014

		DOCKET NUMBER:  AR20130021343 


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 upgrade of his general discharge to honorable.

2.  The applicant states he had a major alcohol problem and could not continue his service.  He contends that he was forced to work intoxicated and he was in fear of hurting himself or others.  

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 18 April 1985.  

3.  He accepted nonjudicial punishment (NJP) on the following dates:

* on 15 November 1985 for stealing a wallet, property of the post exchange
* on 18 March 1986 for failing to go at the time prescribed to his appointed place of duty and for disobeying a lawful order from his superior noncommissioned officer (NCO)
* on 15 June 1987 for breaking restriction and for two specifications of failing to go at the time prescribed to his appointed place of duty
* on 1 July 1987 for failing to go at the time prescribed to his appointed place of duty, disrespect toward an NCO, disobeying a lawful order from his first sergeant, and disobeying a lawful command from his superior commissioned officer

4.  On 29 July 1987, he was advised by his unit commander that he was initiating action to discharge him from the Army for misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, with a general, under honorable conditions characterization of service.  The commander cited as the reasons for the proposed separation action the fact that the applicant had disobeyed a commissioned officer and an NCO and had disrespected an NCO.  The applicant was also advised of his right to consult with legal counsel and to submit statements in his own behalf.

5.  On 29 July 1987, he acknowledged receipt of the proposed separation action. He declined the opportunity to consult with legal counsel and elected not submit a statement in his own behalf.  He also acknowledged he understood he could expect to encounter substantial prejudice in civilian life if a general discharge were issued to him.  He acknowledged he understood he could apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge if he received a character of service of less than honorable; however, an act of consideration by either board did not imply his discharge would be upgraded.

6.  On 14 August 1987, the appropriate separation authority approved the recommendation for separation for serious misconduct under the provisions of Army Regulation 635-200, paragraph 14-12c, with the issuance of a General Discharge Certificate.  On 28 August 1987, he was discharged accordingly. 

7.  There is no evidence in the applicant's available records indicating alcohol abuse was the proximate cause of his repeated acts of misconduct. 

8.  The ADRB denied his request for an upgrade of his general discharge on 
28 January 1992.

9.  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 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 general discharge if such is merited by the Soldier’s overall record.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge has been carefully considered.

2.  The available evidence confirms his separation was accomplished in accordance with 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 thereof were appropriate considering all the facts of the case.

3.  His record of indiscipline includes NJP on four occasions for acts of misconduct such as of failing to go to his appointed place of duty on several occasions, stealing, failure to obey lawful orders, disrespect towards commissioned and noncommissioned officers, and breaking restriction.  He could have referred himself for help with his alcohol problem.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  As a result, he is not entitled to an honorable discharge.

4.  Based on the foregoing evidence, there is no basis to grant the 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)                                         AR20130021343



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ABCMR Record of Proceedings (cont)                                         AR20130021343



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