RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070012695


	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:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

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 that his discharge be upgraded.

2.  The applicant states that he was drunk and did not realize that he was sick because of the alcohol.  He is not trying to make more excuses.  He does not want money.  All he wants is a flag for his burial.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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 23 June 1972.  He completed basic training.

3.  In August 1972, the applicant was first treated for having a seizure.  His service medical records indicate he reported a history of seizure disorder since age 10.

4.  On 9 February 1973, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from on or about 4 October to on or about     9 December 1972 and of two specifications of failing to repair.  He was sentenced to confinement at hard labor for 70 days and to forfeit $50.00 pay per month for 3 months.

5.  On 28 June 1973, the applicant was admitted into the Alcohol and Drug Abuse Control Program for alcohol abuse.  He departed AWOL before he could finish the program.

6.  On 28 December 1973, the applicant was convicted by a special court-martial of being AWOL from on or about 5 July to on or about 26 July 1973 and from on or about 6 August to on or about 23 November 1973.  He was sentenced to confinement at hard labor for 5 months, to forfeit $215.00 pay per month for        5 months, and to be reduced to Private, E-1.  

7.  On 8 January 1974, the applicant completed a mental status evaluation.  He was found to be mentally responsible, to be able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

8.  On 28 January 1974, the applicant completed a separation physical and was found qualified for separation.  

9.  On 31 January 1974, while at the U. S. Army Retraining Brigade, the applicant’s commander initiated separation action under the provisions Army Regulation 635-200, paragraph 13-5, for unfitness.  The commander noted that the applicant had received considerable counseling since his arrival at the Retraining Brigade by the social workers, leadership team, and unit cadre.  He did not respond favorably to the counseling.  He demonstrated a disregard for military authority and indicated no desire to return to duty.  

10.  On 31 January 1974, the applicant was advised of his rights by counsel.  He waived consideration of his case by a board of officers; waived personal appearance before such a board; elected not to make a statement on his behalf; and waived representation by counsel.

11.  On 5 February 1974, the appropriate authority approved the recommendation and directed issuance of an Undesirable Discharge Certificate.

12.  On 6 February 1974, the applicant was discharged, with an undesirable discharge and a characterization of service of under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-200, paragraph 13-5a(1), for unfitness.  He had completed 8 months and 22 days of creditable active service and had 322 days of lost time.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, then in effect, contained the policy and outlined the procedures for separating individuals when they were involved in frequent incidents of a discreditable nature with civil or military authorities and it was established that further efforts at rehabilitation were unlikely to succeed or they are not amenable to rehabilitation measures.

14.  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 applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  

2.  The applicant contended that he was drunk and did not realize that he was sick because of the alcohol.  The evidence of record shows that the Army gave the applicant a chance to overcome his alcoholism when he was admitted into the Alcohol and Drug Abuse Control Program for alcohol abuse.  However, he departed AWOL before he could finish the program.

3.  There is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__slp___  __pms___  __lcb___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




__Shirley L. Powell___
          CHAIRPERSON



INDEX

CASE ID
AR20070012695
SUFFIX

RECON

DATE BOARDED
20080129
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19740206
DISCHARGE AUTHORITY
AR 635-200, ch 13
DISCHARGE REASON
A50.00
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.