BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150011825 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ ___x_____ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150011825 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150011825 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 discharge under other than honorable conditions to general under honorable conditions. 2. The applicant states he was not given the opportunity to seek help for his alcohol and gambling addictions. He might not have been arrested if he had received assistance. He was discharged in 1989 for the commission of a serious offense in the State courts. He is requesting an upgrade of his discharge to enable him to obtain medical benefits from the Department of Veterans Affairs. He was a good Soldier during his time in the Army and was respected by his fellow Soldiers, as well as by officers. It was a surprise that he was convicted of the felony, as it was out of character and would not have happened had he not been dependent on alcohol and gambling. He asked for help with his addictions on two occasions, from his first sergeant as well as his company commander, and was told to be a man. He was treated like a weak link so he decided not to bring up the subject again until things spiraled out of control and he was arrested by the authorities. He believes he would have been a career Soldier and not be in the shape he is today had he been afforded the opportunity to get help. 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 5 January 1988. 3. The facts and circumstances surrounding his discharge are not in his available records for review. 4. He claims he was arrested by civilian authorities for a felony related to his alcohol and gambling addictions. 5. He also claims he sought help from his chain of command with his alcohol and gambling addictions. There is no evidence of record showing he suffered from alcohol or gambling addictions and that he sought treatment. 6. His DD Form 214 shows he was discharged under other than honorable conditions for misconduct – commission of a serious offense – on 18 September 1989 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c. He completed 1 year, 1 month, and 21 days of total active service. He was charged with lost time under Title 10, U.S. Code, section 972, from 22 February 1989 through 18 September 1989. 7. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. 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, 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 considered appropriate for a Soldier discharged under this chapter. b. Paragraph 3-7a states 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. c. Paragraph 3-7b states 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. 2. Title 10, U.S. Code, section 972, provides that an enlisted member of an Armed Force who: (1) deserts; (2) is absent from his or her organization, station, or duty for more than 1 day without proper authority, as determined by competent authority; (3) is confined by military or civilian authorities for more than 1 day in connection with a trial, whether before, during, or after the trial; or (4) is unable to perform his or her duties for more than 1 day, as determined by competent authority, because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct; is liable, after his or her return to full duty, to serve for a period that, when added to the period the member served before his or her absence from duty, amounts to the term for which the member was enlisted or inducted. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The facts and circumstances surrounding the applicant's discharge are not available for review. 2. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense. He does not dispute this. 3. There is no indication his discharge was not accomplished in compliance with applicable regulations without procedural errors that would have jeopardized his rights. It is therefore presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. 4. Although the applicant claims he was not provided an opportunity to seek help for his alcohol and gambling addictions, there is no evidence of record to corroborate this. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011825 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011825 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2