RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 August 2005
      DOCKET NUMBER:  AR20050001066


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Alan Chin                     |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Deborah S. Jacobs             |     |Member               |
|     |Mr. Michael J. Flynn              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his general, under honorable
conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that:

     a.  he was assaulted on 13 December 1980 while stationed at Fort
Campbell [Kentucky] where he was kicked and punched several times to the
head and face by several people in the barracks;

     b.  that he was treated for cuts, multi-abrasions, contusions to the
forehead and temples, fractured jaw, and severe pain.  He claims he was in
an inpatient status for 11 weeks;

     c.  that he was released from the Army under chapter 9 of Army
Regulation 635-200 because he was unable to perform his duties due to his
trauma;

     d.  and that he suffers from Post Traumatic Stress Disorder (PTSD),
emotional distress, chemical imbalance, short term memory loss, mental
instability, and alcoholism.

3.  The applicant provides a copy of a self-authored letter, dated 18
January 2005; a copy of a medical consultation, dated 20 May 1982; a copy
of an undated Kentucky EMS Systems hospital emergency room form; and a copy
of Standard Form 600 (Chronological Record of Medical Care), dated 13
December 1980.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 July 1982, the date of his discharge from the service.  The
application submitted in this case is dated 18 January 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s service personnel records show he enlisted in the
Regular Army on 5 August 1980 for a period of 3 years.  He successfully
completed basic and advanced individual training and was awarded the
military occupational specialty 13F10 (Fire Support Specialist).  The
highest grade the applicant held was the rank of private/pay grade E-2.

4.  Records show that on 31 March 1981, the applicant accepted nonjudicial
punishment under Article 15, Uniform Code of Military Justice (UCMJ), for
failing to go at the time prescribed to his appointed place of duty and for
disobeying a lawful order from a noncommissioned officer on 12 March 1981.
His punishment included forfeiture of $116.00, extra duty for 14 days, and
restriction to the battery area for 14 days.

5.  On 7 July 1981, the applicant accepted nonjudicial punishment under
Article 15, UCMJ, for disrespect toward a commissioned officer on 14 June
1981.  His punishment included reduction to the rank of private/pay grade E-
1, forfeiture of $116.00, and correctional custody for seven days.

6.  The applicant was advanced back to the rank of private/pay grade E-2 on
1 February 1982.  However, on 3 March 1982, the applicant accepted
nonjudicial punishment for wrongfully using provoking words toward and for
disobeying a lawful order from a noncommissioned officer.  His punishment
included reduction to the rank of private/pay grade E-1, forfeiture of
$120.00, extra duty for 14 days, and restriction to the battery area for 14
days (suspended until 1 June 1982).

7.  A letter from Headquarters, 101st Airborne Division (Air Assault) [Fort
Campbell, Kentucky], dated 3 June 1982, provided the following synopsis of
the applicant’s Alcohol and Drug Abuse Prevention and Control Program
(ADAPCP) activities.  The Clinical Director stated, in effect, that:

     a.  the applicant was admitted to the ADAPCP on 12 March 1982;

     b.  he participated in a treatment program of awareness education and
group and individual training; and

     c.  his progress was evaluated to be unsatisfactory and he should be
considered a rehabilitation failure.






8.  On 3 June 1982, the Alcohol and Drug Control Officer concurred with the
recommendation of the Clinical Director.

9.  On 6 July 1982, the applicant’s commander notified him that he was
initiating action to discharge him under the provision of chapter 9 of Army
Regulation
635-200 based on his failure to successfully complete the ADAPCP and his
continuous abuse of alcohol.  The applicant acknowledged receipt of the
initial notification on the same day.

10.  The commander advised the applicant of his right to submit statements
in his own behalf; the right to military legal counsel; and the right to
undergo a complete medical examination.  The applicant was directed to
complete the rights election section within 3 days of the official
notification.  On 9 July 1982, the applicant refused to sign the applicable
section.

11.  On 9 July 1982, the applicant’s commander recommended him for
discharge under the provision of chapter 9 of Army Regulation 635-200 due
to alcohol rehabilitation failure.

12.  On 9 July 1982, the appropriate authority approved the recommendation
for discharge under the provision of chapter 9 of Army Regulation 635-200
and directed that the applicant be furnished a General Discharge
Certificate.

13.  On 29 July 1982, the applicant was discharged under the provisions of
chapter 9 of Army Regulation 635-200, due to alcohol rehabilitation
failure, with a characterization of service of under honorable conditions.
He had completed
1 year, 11 months, and 25 days of active service.

14.  The applicant submitted medical documentation to show that he was in
fact assaulted and that he received medical treatment for his injuries
received.

15.  Evidence of records also show that the applicant received a Letter of
Commendation, dated 29 October 1981, for his participation and performance
in capturing the intra-battalion flag football championship for 1981; he
successfully completed the Basic Skills Education Program II through Pikes
Peak Community College [Fort Campbell, Kentucky] in November 1981; he
completed high school and received his High School Equivalency Certificate
through the State of Kentucky on 28 April 1982; and he completed the Jungle
Warfare Training Course as a Jungle Expert through the Jungle Operations
Training Center at Fort Sheridan, Panama on 7 May 1982.



16.  On 18 March 1983, the applicant applied to the Army Discharge Review
Board (ADRB) to upgrade his discharge.  On 22 September 1983, the ADRB
reviewed and denied the applicant’s request for upgrade.  The ADRB
determined that the applicant’s discharge was proper and equitable and that
the discharge was properly characterized as under honorable conditions.

17.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3-year limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR has adopted the broader policy of
calculating the 3-year time limit from the date of exhaustion in any case
where a lower level administrative remedy is utilized.

18.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel)
sets forth the basic authority for the separation of enlisted personnel.
Chapter 9 of this regulation contains the authority and outlines the
procedures for discharging individuals because of alcohol or other drug
abuse.  A member who has been referred to ADAPCP for alcohol/drug abuse may
be separated because of inability or refusal to participate in, cooperate
in, or successfully complete such a program if there is a lack of potential
for continued Army service and rehabilitation efforts are no longer
practical.  At the time of the applicant’s separation an honorable or
general discharge was authorized.

19.  Chapter 4 of Army Regulation 600-85 (Army Substance Abuse Program), in
pertinent part, governs the separation of Soldiers for alcohol and other
drug abuse.  Paragraph 4-26 specifically states that Soldiers who are
rehabilitation failures will be processed for administrative separation
when the unit commander determines that further rehabilitation efforts are
not practical and that rehabilitation is a failure.

20.  Army Regulation 635-200 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 (emphasis added), or is otherwise so
meritorious that any other characterization would be clearly inappropriate.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge under honorable
conditions should be upgraded to an honorable discharge.

2.  The applicant contends that he was physically assaulted on 13 December
1980, resulting in his inability to perform his duties because of the
trauma, leading to his discharge from the service.  While the applicant
submitted medical evidence of treatment for the injuries he sustained in
the assault, there is no evidence to show the assault affected his ability
to perform his duties.  On the contrary, evidence of record shows that
between the time of his assault and the time of his discharge he
demonstrated his ability to excel.  During this period he received a Letter
of Commendation in October 1981; he successfully completed the Basic Skills
Education Program II in November 1981; he received his High School
Equivalency Certificate on 28 April 1982; and he completed the Jungle
Warfare Training Course as a Jungle Expert on 7 May 1982.

3.  The applicant also claims he suffers from PTSD and other psychological
problems and warrants a discharge upgrade.  There is no evidence and the
applicant has provided no evidence that shows he suffered then or suffers
now from PTSD or any other psychological problems that was the cause of his
indiscipline and subsequent separation.  Based on these facts, his
contention is not sufficiently mitigating to warrant relief.

4.  The applicant's failure to cooperate with treatment with ADAPCP clearly
shows he did not meet the standards of acceptable conduct and performance
of duty for Army personnel.

5.  Evidence of record shows that the applicant was properly and equitably
discharged in accordance with regulations in effect at the time.  The type
of discharge directed and the reasons for separation were appropriate
considering all the facts of the case.  The records contain no indication
of procedural or other errors that would tend to jeopardize his rights.

6.  The ABCMR begins its consideration of each case with the presumption of
administrative regularity.  In the absence of evidence to the contrary, it
is determined that all requirements of law and regulations were met and the
rights of the applicant were fully protected throughout the separation
process.  Further, it is determined that the type of discharge and the
reason for separation were appropriate considering all the facts of the
case.


7.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.

8.  Based on all of the foregoing, there is insufficient basis to upgrade
the applicant's discharge.

9.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 22 September 1983.
 As a result, the time for the applicant to file a request for correction
of any error or injustice to this Board expired on 21 September 1986.
However, the applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__DSJ__  __JNS___  __MJF___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                  _____John N. Slone _____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050001066                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19820729                                |
|DISCHARGE AUTHORITY     |AR 635-200, CHAP 9                      |
|DISCHARGE REASON        |ALCOHOL ABUSE                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR. CHUN                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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