IN THE CASE OF:	

		BOARD DATE:	  26 August 2008

		DOCKET NUMBER:  AR20080008493 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

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

2.  The applicant states, in effect, he was not given the proper attention when he was discharged.  He further states he had many major changes in his life and was not given proper treatment for his problems.

3.  The applicant provides a copy of a Narrative Summary, a Medical Record, and one page of a physical examination 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 military personnel record shows he enlisted in the Regular Army on 11 October 1989 for a period of 4 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 62J (General Construction Equipment Operator).

3.  On 9 March 1990, the applicant was assigned to A Company, 34th Engineer Battalion at Fort Riley, Kansas.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 6 June and 19 July 1990.  His offenses included three specifications of failure to go to his appointed place of duty, derelict in the performance of his duties by failing to be ready for a command inspection, and being absent without leave (AWOL) during the period from 18 - 28 June 1990.

5.  On 9 August 1990, the applicant was convicted by a summary court-martial (SCM) of four specifications of being absent from his unit and being incapacitated for the proper performance of his duties as a result of wrongful overindulgence in intoxicating liquor or drugs.  His sentence consisted of 30 days in confinement.  The convening authority approved the sentence on 17 August 1990. 

6.  On 4 March 1991, the applicant was admitted to Irwin Army Community Hospital (IACH), Fort Riley, Kansas, through the emergency room with an alcohol related suicide attempt.  He was discharged on 11 March 1991.  The Narrative Summary reports he was discharged on antabuse (250 mg per day), had a follow up scheduled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) Clinic, and was to attend Alcoholics Anonymous (AA) on a daily basis.  The applicant was diagnosed with alcohol dependence, continuous, early, manifested by recurrent alcohol use despite consequences and treatment with developed tolerance; occupational problem manifested by unhappiness with active duty; and self-induced lacerations on his left arm.

7.  On 14 March 1991, the applicant was evaluated by a major at the Medical Service Corps, a psychiatrist at the IACH.  The examiner found the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.  The examiner diagnosed the applicant with a borderline personality disorder and recommended he be administratively eliminated from the military as expeditiously as possible.

8.  On 13 May 1991, the applicant was found physically qualified for separation under Chapter 5-13 of Army Regulation 635-200 (Personnel Separations).

9.  On 20 May 1991, the applicant was evaluated by a major of the Medical Corps, a psychiatrist at the IACH.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  The examiner diagnosed the applicant with alcohol dependence, mixed personality disorder, and self-induced lacerations of his arm.   The examiner recommended the applicant be administratively eliminated from the military as expeditiously as possible.  The examiner noted the applicant's problems were not amenable to further inpatient hospitalization, outpatient psychiatric or alcohol treatment, training, disciplinary action, or reclassification the Army system.

10.  On 29 May 1991, the applicant was convicted by a SCM of six specifications of being absent from his unit.  His sentence consisted of reduction to private/pay grade E-1 and 30 days in confinement.  The convening authority approved the sentence on 6 June 1991.

11.  On 14 June 1991, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Chapter 14 of Army Regulation 635-200 for misconduct due to his two summary courts-martial and his having received NJP on two occasions.  The applicant was further notified that the separation authority may direct that his service be characterized as honorable, under honorable conditions, or under other than honorable conditions. 

12.  The commander advised the applicant of his right to have his case considered by a board of officers, to appear in person before a board of officers, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge and request his case be presented before a board of officers.

13.  After having consulted with counsel, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 14 of Army Regulation 635-200 for misconduct.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf.


14.  The applicant also acknowledged that, as the result of issuance of an discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

15.  The applicant's commander recommended him for discharge under the provisions of Chapter 14 of Army Regulation 635-200 for misconduct due to his two summary courts-martial and his having received NJP on two occasions.  The commander also recommended waiver of a rehabilitative transfer.

16.  The applicant's intermediate commanders recommended he be discharged and that his service be characterized as under other than honorable conditions.

17.  On 17 July 2991, the appropriate authority approved the recommendation for discharge under the provisions of Chapter 14 of Army Regulation 635-200, 
waived the requirement for rehabilitative transfer, and directed the applicant's service be characterized as under other than honorable conditions.

18.  On 19 July 1991, the applicant was discharged under the provisions of chapter 14 of Army Regulation 635-200.  He had completed 1 year, 6 months, and 17 days of active service that was characterized as under other than honorable conditions.  He had 82 days of time lost.  

19.  Paragraph 5-13 (Separation because of personality disorder) of Army Regulation 635-200, then in effect, provided that separation because of personality disorder was not appropriate when separation was warranted under, among others, Chapter 14 (Separation for Misconduct) of this regulation.

20.  Army Regulation 635-200, then in effect, 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 serious offense, conviction by civil authorities, desertion, or absences without leave.  Action was to be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.
 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded because he had many major changes in his life and he did not receive the proper treatment for his problems.

2.  The Narrative Summary shows the applicant was receiving treatment for an alcohol problem through ADAPCP, he was prescribed antabuse for daily use, and he was to attend daily AA meetings.  He was also receiving treatment by a psychiatrist.  Therefore, the applicant's contention that he did not receive proper treatment is without merit.

3.  The applicant was diagnosed with a personality disorder and it appears that processing under the provisions of paragraph 5-13 of Army Regulation 635-200 may have been initiated.  However, before he could be processed he was convicted by a second SCM for violations of the UCMJ.  The regulation is specific in that processing under paragraph 5-13 is not appropriate when separation is warranted under Chapter 14 for misconduct.

4.  Evidence 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.

5.  A review of the applicant's record of service shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

6.  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 that requirement.

7.  In view of the foregoing, there is insufficient basis to change the characterization of the applicant's discharge to honorable or under honorable conditions.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ___X___  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.




      _______ _  X _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008493



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ABCMR Record of Proceedings (cont)                                         AR20080008493



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