BOARD DATE: 1 August 2017 DOCKET NUMBER: AR20160001917 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: 1 August 2017 DOCKET NUMBER: AR20160001917 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: 1 August 2017 DOCKET NUMBER: AR20160001917 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: a. He is asking for mercy, not to correct an injustice. He was discharged for misconduct, frequent acts of a discreditable nature, and there is no error in his discharge proceedings. b. His command did everything in their power to get him to adhere to the rules and regulations of the Army. Unfortunately, he was already an alcoholic when he enlisted and was beyond any help at that time. c. He drank a lot, but so did all of his friends, so he thought it was normal. When he entered the controlled environment of basic combat training (BCT), he no longer had alcohol to feed his addiction. He became restless, irritable, and discontent and rebelled against lawful orders, rules, and regulations. d. He can now see that he was subconsciously trying to get the Army to discharge him so he could drink the way he needed to drink around the clock. He gave the Army no choice but to discharge him. e. His problems continued after his discharge and his life got worse. He was homeless by 1987. Although Alcoholics Anonymous (AA) didn't make sense, the idea of living with alcohol was as terrifying as the thought of living life without alcohol. So in desperation, he took their suggestions and worked the AA program and it totally changed his life. f. He has remained active in AA and continues go to meetings regularly, maintaining sobriety for over 27 years. He has a spiritual advisor and he has been an AA sponsor to others. His life and happiness are contingent upon his continuing to work AA's program. g. He remains sober employing the spiritual principles of AA in his everyday life. He maintains an excellent job with the Department of Labor and Licensing (State of Maryland), has been married over 26 years, and owns a home. He is a contributing member of his community. h. The only alcoholic wreckage left for him to address is his discharge characterization of service. While his discharge characterization of service was certainly warranted at the time, he asks the Board to take into consideration his health – untreated alcoholism at the time of his service. While this does not excuse his misconduct, it does explain it. He asks the Board to upgrade his discharge under other than honorable conditions to general under honorable conditions based on his alcoholism (and its effects on his behavior), his exemplary post-service conduct and behavior, and out of mercy. 3. The applicant provides no supporting documentation. 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 27 October 1976 and completed BCT. There is no evidence he completed advanced individual training. 3. During BCT the applicant had over 22 Trainee Observation Reports documented in his record for failing uniform inspection including lack of proper personal appearance (facial hair), failing barracks inspection, lack of motivation (not studying), failure to follow instructions of superiors, failure to follow standard operating procedures, and failure to report at the appointed time. There were occasions where he did receive positive observation reports. 4. On 18 February 1977, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failing to obey a lawful order, sleeping on fire watch, and being disrespectful language toward a noncommissioned officer. 5. The applicant's record contains a DA Form 2-2 (Insert Sheet to DA Form 2-1 (Personnel Qualification Record – Record of Court Martial Conviction) showing the applicant was found guilty during a summary court-martial on 25 May 1977 for breaking restriction and being absent without leave (AWOL) from 3 through 21 March 1977. His sentence consisted of confinement at hard labor for 30 days. 6. On 25 May 1977, a DA Form 4187 (Personnel Action) shows he was confined and he was released from confinement and returned duty on 17 June 1977. 7. The applicant's administrative discharge separation packet is not filed in his official military personnel file. His records do contain Orders 134-1, dated 19 July 1977, issued by the U.S. Army Retraining Brigade, Fort Riley, KS, discharging him from the Regular Army. 8. On 27 July 1977, the applicant was discharged. He was issued a DD Form 214 (Report of Separation from Active Duty) showing he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(1), due to frequent acts of a discreditable nature with civil or military authorities with the issuance of an Under Other Than Honorable Conditions Discharge Certificate. His character of service is shown as under other than honorable conditions. He completed 7 months and 13 days of service with 41 days of lost time (AWOL and confinement). 9. There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statutory limit. REFERENCES: 1. Army Regulation 635-200 sets forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. a. Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability. Paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, drug abuse, an established pattern of shirking, failure to pay just debts, or failure to support dependents. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate. During administrative processing, the Soldier would have had to acknowledge he had been advised of the basis for the contemplated separation action. He would have been afforded representation by counsel and possible consideration of his case by a board of officers. He would have been able to submit statements in his own behalf. He would have acknowledged his understanding that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and that he may be ineligible for many or all benefits as a veteran as the result of the issuance of a discharge under other than honorable conditions. b. 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. Army Regulation 15-185 (ABCMR), states the ABCMR begins its consideration of each case with the presumption of administrative regularity. It is not an investigative body and will decide cases based on the evidence of record. DISCUSSION: 1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant, by his own admission and through limited evidence filed in his official military personnel file, has not shown there was an error in the administrative processing of his separation for acts of a discreditable nature with military authorities. 2. The applicant is requesting upgrade of his characterization of service based on clemency (mercy); however, he has not provided any supporting documentation to validate his contentions of meritorious post-service conduct other than his own personal statement. 3. To grant an upgrade based solely on a request for clemency would place the applicant on an equal footing for benefits and privileges with Soldiers who did not commit acts similar to those that led to the applicant's discharge. 4. The applicant has not provided and the record does not contain any evidence that he was an alcoholic at the time of the offenses that led to his discharge or to document his post-service sobriety. 5. It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, due to frequent acts of a discreditable nature with military authorities. His disciplinary history demonstrated a trend of misconduct and clearly established that rehabilitation was impractical or was unlikely to produce a satisfactory Soldier. By his own admission, he stated his conduct at the time led to his discharge. 6. The character of his service clearly did not rise to the level of conduct and performance of duty commensurate with a general discharge under honorable conditions. In view of the foregoing evidence, there appears to be no basis for upgrading his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001917 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001917 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2