RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20070018896 


	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

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	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 to an honorable discharge. 

2.  The applicant states, in effect, that he would like to have this Board review his record and look at time served compared to his expiration term of service.  He states that he was discharged in 1983.  However, he is not sure of the actual day and month he was discharged, but the year is correct.  He adds that his father retired after serving 20 years in the Air Force and he lived on Air Force Bases for almost 18 years.  He joined the Army because he wanted to serve in Iran and he believes that he was an excellent Soldier.  He received awards, decorations, letters of commendation and letters of appreciation. 

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

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’s record shows he enlisted in the Regular Army and entered active duty on 13 May 1980.  He was trained in, awarded and served in military occupational specialty (MOS) 11B (Infantryman), and the highest rank he attained while serving on active duty was pay grade E-3.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition. 

3.  On 19 April 1982, the applicant enrolled in the Army Alcohol Drug Abuse Prevention and Control Program (ADAPCP).  The applicant was placed in a detoxification program which included 4 weeks of intense counseling.  

4.  Personnel Action (DA Form 4187) dated 18 June 1982, shows that the applicant was reported for being absent without leave (AWOL) from 21 May to 
24 May 1982 and from 25 May to 2 June 1982, he surrendered to military authorities on both occasions.  There is also no evidence that he was punished for the offenses. 

5.  A Military Police Traffic Accident Report dated 1 December 1982, shows that the applicant, while waiting for a street car, staggered and was struck by an on- coming street car.  The applicant was transported by a German ambulance to a German hospital and was admitted, treated and placed in the critical care unit.  The applicant received a collapsed lung and facial laceration.  The applicant was also reported as intoxicated during the time of the accident according to German Police.   

6.  On 25 February 1983, the applicant accepted nonjudicial punishment (NJP) for failure to go at the prescribed time to his appointed place of duty and for being absent without leave from 16 to 17 February 1983.  His imposed punishment was a reduction to pay grade E-1, a forfeiture of 7 days pay, and 14 days restriction and extra duty.

7.  The applicant's military service records contain a copy of an ADAPCP Progress Report, dated 23 February 1983.  This document contains the counselor’s recommendation that the applicant be declared an ADAPCP failure, along with his observation that the applicant had shown virtually no desire to control his use of alcohol.  This document also shows the applicant was declared a rehabilitation failure.

8.  On 28 February 1983, the applicant’s unit commander notified him that separation action under the provisions of chapter 9, Army Regulation 635-200, was being initiated on him because of his alcohol rehabilitation failure.  The reasons for his proposed action were based on the applicant showing no desire to control his use of alcohol and his involvement in numerous incidents while under the influence of alcohol, in which one incident could have cost him his life.

9.  On the same day, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  Subsequent to his counseling, the applicant elected not to submit a statement in his own behalf.  

10.  On 28 March 1983, the appropriate authority approved the separation action on the applicant and directed that he receive a discharge under honorable conditions and that the narrative reason for separation be “Alcohol Abuse-Rehabilitation Failure.”  On 18 April 1983, the applicant was discharged accordingly.  The DD Form 214, he was issued shows he completed a total of 
2 years, 10 months and 25 days of creditable active military service.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 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. 

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

DISCUSSION AND CONCLUSIONS:

1.  From a purely legal standpoint, the applicant’s discharge from service was accomplished in accordance with regulations then in effect.  

2.  While the applicant’s acts of misconduct are not condoned by this Board, the general discharge he received appears to be unduly harsh.  Consideration should have been given to the fact that the applicant served 2 years, 10 months and 25 days of a 3-year enlistment and he had less than 35 days before his expiration term of service date. 

3.  In retrospect, the applicant’s discharge under honorable conditions appears too harsh.  The applicant was AWOL for a total of 10 days.  The Board concludes that an honorable discharge would be more equitable.  However, the reason for his discharge should remain unchanged.   

4.  Therefore, in view of the foregoing; it would be appropriate to correct the applicant’s record as recommended below.


BOARD VOTE:

___x____  ___x__  ___x_  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by
showing that the individual was separated from the service with an Honorable Discharge Certificate on 18 April 1983.

2.  That the Department of the Army issues to the applicant an Honorable Discharge Certificate, dated 18 April 1983, in lieu of the Under Honorable Conditions Discharge Certificate of the same date now held by him.





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          CHAIRPERSON