RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 September 2006
      DOCKET NUMBER:  AR20060003658


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons.             |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Alice Muellerweiss            |     |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, an upgrade of his under other than
honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, that the misconduct that led to his
discharge was the result of a well documented substance abuse related
disorder brought on by emotional stress due to a failing marriage.  He
claims that at the age of 20, he opted for discharge in lieu of treatment
in ignorance of the impact it would have on him forever.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 15 February 1979, the date of his separation from active
duty.  The  application submitted in this case is dated 1 March 2006.

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 record shows that he enlisted in the Regular Army and
entered active duty on 26 January 1978.  He was trained in and awarded
military occupational specialty (MOS) 11B (Infantryman), and the highest
rank he attained while serving on active duty was specialist four (SP4).

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Appointments and Reductions), that the applicant was reduced to
private first class (PFC) on 11 December 1978, and to private/E-1 (PV1) on
30 January 1979.  His record documents no acts of valor, significant
achievement, or service warranting special recognition.

5.  The applicant's record contains a disciplinary history that includes
his acceptance of non-judicial punishment (NJP) under the provisions of
Article 15 of the Uniform Code of Military Justice (UCMJ) on four separate
occasions for the following offenses:  sleeping on guard duty; damaging
government property; disobeying a lawful order; and disorderly conduct.

6.  On 15 December 1978, the applicant underwent a separation medical
examination.  In the Report of Medical History (SF 93) completed by the
applicant on this date, he made the statement "I am in good health no
medications".  The Report of Medical Examination (SF 88) reveals his
psychiatric clinical evaluation was normal, and the examining physician
determined he was qualified for separation/retention.

7.  On 19 December 1978, his unit commander notified the applicant that
separation action was being initiated on him under the provisions of
chapter 14, Army Regulation 635-200, based on his frequent violations of
the UCMJ in a
ten-month period.  The unit commander cited the applicant's acceptance of
NJP on four separate occasions, and his attempt to commit suicide while
intoxicated.  He further indicated that the applicant had been reassigned
to three different platoons under three separate supervisory chains, but
this did not have a favorable impact on his conduct.

8.  On 21 December 1978, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action and its
effects, the rights available to him, and the effect of a waiver of his
rights.  Subsequent to receiving this counseling, the applicant completed
an election of rights, in which he waived consideration of and personal
appearance before a board of officers, and his right to representation by
counsel.  He also elected not to submit a statement in his own behalf.

9.  On 12 January 1979, the applicant underwent a mental status evaluation.
 He was found to be fully alert and fully oriented. His mood was normal,
his thinking process was clear, and his thought content was normal.  The
examiner determined the applicant was mentally responsible, was able to
distinguish right from wrong and to adhere to the right, and that he had
the mental capacity to understand and participate in board proceedings.
The examiner finally concluded that the applicant met retention standards.
On this date, a medical officer's statement was completed by the examining
physician that confirmed the applicant had been given a psychiatric
evaluation and separation medical examination, which determined he was
mentally responsible, and that he met medical retention standards.

10.  On 30 January 1979, the separation authority directed the applicant be
discharged under the provisions of paragraph 14-33b, Army Regulation 635-
200, by reason of misconduct (frequent incidents of a discreditable nature
with civil or military authorities), and that he receive an UOTHC
discharge.

11.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations.

12.  Army Regulation 635-200 (Personnel Separations) 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, 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.  Although an honorable discharge (HD) or GD may be
issued, an UOTHC discharge is normally appropriate for a Soldier discharged
under this chapter.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s contention that he suffered from a substance abuse
disorder that contributed to the misconduct that led to his UOTHC discharge
was carefully considered.  However, this factor is not sufficiently
mitigating to warrant granting the requested relief.  The evidence of
record confirms he was determined to be mentally and physically sound by
competent medical authority during his separation processing, and that he
suffered from no disabling mental or physical condition that would have
impaired his ability to distinguish right from wrong and to adhere to the
right at the time of his discharge.

2.  The evidence of record confirms the applicant's separation processing
was accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met, and the rights of the
applicant were fully protected throughout the separation process.  Further,
the applicant's discharge accurately reflects his overall record of
undistinguished service.

3.  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 has failed to
submit evidence that would satisfy this requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 February 1979, the date of his
separation from active duty.  Therefore, the time for him to file a request
for correction of any error or injustice expired on 14 February 1982.  He
failed to file within 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

___LDS _  __PMS__  __AM ___  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.




                                  ____Linda D. Simmons______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003658                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/09/28                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1979/02/15                              |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |Misconduct  (Frequent Incidents)        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]