RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 June 2007
      DOCKET NUMBER:  AR20070000673


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dean A. Camarella             |     |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 discharge be upgraded.

2.  The applicant states that he was a serious alcoholic and just could not
get it right.  He loved the Army.  He has been sober for five years now.
He is dying from liver problems and needs help.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty); a psychological evaluation, dated 4 August
2004; and medical records, dated 2001, 2002, and 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 October 1981.  The application submitted in this case is
dated                  14 December 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 enlisted in the Regular Army on 1 November 1979.  He had
indicated on his DD Form 1966/5 (Record of Military Processing – Armed
Forces of the United States) that he had never been involved in the use of
marijuana, LSD (lysergic acid diethylamide), or any other harmful or habit-
forming drugs and/or chemicals.  He completed basic training and advanced
individual training and was awarded military occupational specialty 13B
(Cannon Crewman).

4.  The applicant was command-referred to ADAPCP (Alcohol and Drug Abuse
Prevention and Control Program) on or about 18 April 1980.  A DA Form 4465
(ADAPCP Military Client Intake and Follow-Up Record) dated 18 April 1980
shows the applicant had indicated that he had used amphetamines, cocaine,
barbiturates, methaqualone, other tranquilizers, hashish, other cannabis
sativa, alcohol, and hallucinogens prior to entering the Army.

5.  On 25 April 1980, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go
to his appointed place of duty during an alert status and for being
incapacitated for the proper performance of his duties as a result of
previous indulgence of intoxicating liquor.

6.  A DA Form 4465 dated 18 June 1980 indicated that the applicant’s
commander had appraised his efficiency and conduct as “good” and the ADAPCP
counselor’s opinion of his progress was “good.”

7.  A DA Form 4465 dated 18 August 1980 indicated that the applicant’s
commander had appraised his efficiency and conduct as “good” and the ADAPCP
counselor’s opinion of his progress was “good.”

8.  A DA Form 4465 dated 17 October 1980 indicated that the applicant’s
commander had appraised his efficiency and conduct as “good” and the ADAPCP
counselor’s opinion of his progress was “good.”

9.  On 17 March 1981, the applicant accepted NJP under Article 15, UCMJ for
being drunk while on duty as a unit policeman and for four specifications
of failing to go to his appointed place of duty.

10.  A DA Form 4465 dated 13 April 1981 indicated that the applicant’s
commander had appraised his efficiency as “good” and his conduct as “fair”
and the ADAPCP counselor’s opinion of his progress was “fair.”

11.  On 24 June 1981, the applicant accepted NJP under Article 15, UCMJ for
conspiring to commit larceny; larceny; and wrongful appropriation of a room
key.

12.  On 27 July 1981, the applicant’s commander notified the applicant of
his intention to initiate separation proceedings on the applicant under
Army Regulation 635-200, chapter 14 for misconduct.

13.  On 28 July 1981, the applicant received a psychiatric evaluation.  The
evaluating psychologist noted there was no evidence of a psychological
disturbance.  The applicant’s mood and affect were appropriate.  His
thought processes were appropriate and he had no suicidal/homicidal
ideation (although it was also noted the applicant was hospitalized for a
possible suicide attempt).

14.  On 5 August 1981, the applicant was advised by consulting counsel of
the basis for the contemplated action to separation him for misconduct.  He
waived consideration of his case by a board of officers, waived personal
appearance before a board of officers, requested consulting counsel, and
indicated that he wished to submit a statement in his own behalf.

15.  On 6 August 1981, the applicant completed a separation physical
examination and was found qualified for separation.

16.  On 28 August 1981, the applicant’s commander recommended the applicant
be eliminated from the service under the provisions of Army Regulation 635-
200 due to misconduct.  He specifically cited the applicant’s alcohol or
other drug offenses, his patterns of misconduct including frequent
incidents of a discreditable nature with civil or military authorities and
an established pattern showing dishonorable failure to pay just debts.

17.  A DA Form 4465 dated 29 August 1981 indicated that the applicant’s
commander had appraised his efficiency and his conduct as “unsatisfactory”
and the ADAPCP counselor’s opinion of his progress was “unsatisfactory.”

18.  In a memorandum for record dated 15 September 1981, the applicant’s
commander noted that the applicant was given ample time to prepare a
statement, but he failed to do so.

19.  On 25 September 1981, the appropriate commander approved the
recommendation to separate the applicant under the provisions of Army
Regulation 635-200, chapter 14 and directed he receive a discharge under
other than honorable conditions.

20.  A DA Form 4465 dated 13 October 1981 indicated that the applicant’s
commander had appraised his efficiency and his conduct as “unsatisfactory”
and the ADAPCP counselor’s opinion of his progress was “unsatisfactory.”

21.  On 29 October 1981, the applicant received a mental status evaluation.
 The evaluating physician found the applicant had the mental capacity to
understand and participate in proceedings and to be mentally responsible.

22.  On 30 October 1981, the applicant was discharged, under the provisions
of Army Regulation 635-200, chapter 14, for misconduct – frequent incidents
of a discreditable nature with civil or military authorities, with a
discharge under other than honorable conditions.  He had completed 2 years
of creditable active service and had no lost time.

23.  The applicant provided a psychological evaluation dated 4 August 2004.
 The applicant had revealed to the evaluating psychologist, in part, an
extensive history of sexual abuse by an older cousin when the applicant was
12 years old.  His early teen years after the alleged sexual abuse was
described as “very confusing.”  The applicant stated he started smoking pot
and drinking when he was about 13, and it got “to be more and more.”  He
stated he dropped out of high school, so he drank or smoked his troubles
away.  He stated he kept on living that way until he went into the Army.

24.  Army Regulation 635-200 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, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.

25.  Army Regulation 635-200, paragraph 3-7a, 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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

26.  Army Regulation 635-200, 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.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in
compliance with regulations applicable at the time with the appropriate
characterization of service considering his record of service.

2.  It is noted that the applicant had an alcohol problem, and the Board is
empathetic with the events that appear to have led to his alcohol, and
drug, problem.  However, the applicant misled the Army when he enlisted.
He indicated that he had never abused drugs.  While in ADAPCP he indicated
that he had had an extensive pre-service history of drug use.  Had he been
honest with recruiting officials, he most likely would have been denied
enlistment.  He could have been considered for separation from the Army for
fraudulent enlistment and have received a discharge under other than
honorable conditions for that reason.

3.  In addition, the Army tried to help the applicant with his alcohol
problem by sending him to ADAPCP.  It is regrettable that he could not take
advantage of that opportunity to overcome his problem while in the Army,
and it is commendable that he has finally become sober.  However, those
facts do not warrant the relief requested.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 October 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         29 October 1984.  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

__jtm___  __wfc___  __dac___  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 T. Meixell____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070000673                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070628                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19811030                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 14                       |
|DISCHARGE REASON        |A51.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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