IN THE CASE OF:	   

		BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20140015273 


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 under other than honorable conditions discharge.

2.  The applicant states, in effect:

* he was facing charges in a civilian court for driving under the influence (DUI)
* the Army jumped the gun and discharged him rather than waiting until the final result
* the civilian court dismissed his charges
* he has been angry ever since for what he feels is an injustice

3.  The applicant provides a document from the City of White House, TN, dated 13 May 1991, showing the decision in his case.

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 5 February 1986.  After completing initial training, he was awarded military occupational specialty (MOS) 88N (Traffic Management Coordinator) (originally shown as MOS 71N).  The highest rank/grade held was specialist four/E-4.

3.  During his term of active service he served in Korea and also was deployed during the Gulf War from on or about 12 September 1990 to on or about 31 March 1991.  He was awarded or authorized: 

* Army Commendation Medal
* Army Achievement Medal (4th Award)
* Army Good Conduct Medal (1st Award)
* National Defense Service Medal
* Southwest Asia Service Medal with two bronze service stars
* Noncommissioned Officer Professional Development Ribbon
* Army Service Ribbon
* Overseas Service Ribbon
* Air Assault Badge
* Expert Marksmanship Qualification Badge with Rifle Bar
* Expert Marksmanship Qualification Badge with Grenade Bar

4.  Available records show, on 21 May 1990, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for one specification of failing to report to his appointed place of duty (failure to repair).  Records also show he had two separate incidents with civilian law enforcement:

* 30 April 1991, the applicant was arrested for driving with a suspended license
* 10 May 1991, the applicant was arrested for DUI and possession of marijuana (this is noted as his second DUI while at Fort Campbell, KY)

5.  The applicant’s discharge packet is not available for review.  There is, however, a duly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty).  His DD Form 214 shows:

	a.  He was discharged on 27 August 1991, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b (a pattern of misconduct).
	b.  The characterization of service is under other than honorable conditions.

	c.  He completed a total of 5 years, 6 months, and 23 days of net active service this period.

6.  The applicant provides a document from the City of White House, TN which shows he had a pending complaint from a civilian police officer which essentially stated:

* while working a stationary radar location, the police officer observed the applicant driving at a rate of speed of 78 miles per hour
* he stopped the applicant and detected the odor of alcohol
* the applicant was given two field sobriety tests and failed one
* after gaining the applicant's permission, the police officer searched the applicant's car and found what he suspected to be marijuana

7.  The document provided by the applicant goes on to show the charges were dismissed by the State.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

a.  Chapter 14 (Separation for Misconduct), paragraph 14-12b, in effect at the time, states members are subject to separation under this provision when they have a pattern of misconduct involving:

* acts of discreditable involvement with civil or military authorities
* conduct which is prejudicial to good order and discipline

b.  Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.

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 requests his under other than honorable conditions discharge be upgraded.  His evidence submitted in support of his request is a copy of a court document which shows a charge of DUI was dismissed.  This evidence suggests the sole basis for his separation action was that one DUI incident.  His record does not support this implied contention, however.  

	a.  His record shows he had had previous misconduct which resulted in NJP.

	b.  Additionally, records show he had other incidents involving DUI and driving with a suspended license.  The applicant does not address these other issues.

2.  The applicant's discharge packet is not available for review.  Nonetheless, there is no evidence submitted by the applicant or from any other source which shows he was not properly and equitably discharged in accordance with the regulations in effect at the time.  The Board presumes regularity and that actions taken by the Army are administratively correct.  All evidence indicates the requirements of law and regulations were and the rights of the applicant were fully protected throughout the separation process.  Absent any evidence to the contrary, regularity must be presumed.

3.  Given the foregoing, the evidence shows the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Accordingly, there is insufficient basis upon which to grant the applicant's request for 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)                                         AR20140015273





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ABCMR Record of Proceedings (cont)                                         AR20140015273



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