IN THE CASE OF:	  

		BOARD DATE:	        6 January 2009

		DOCKET NUMBER:  AR20080016717 


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 an upgrade of his discharge.

2.  The applicant states that his discharge was unjust because his inability to adapt was related to alcohol addiction and that no treatment for his addiction was provided.  He adds that if the treatment has been provided, he would have been able to adapt to military life with no problem.  He concludes that, in effect, his current character of service is a barrier to accessing services at the Department of Veterans Administration (VA).  

3.  The applicant did not provide any additional documentary evidence 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 that he enlisted in the Regular Army for a period of 3 years on 16 November 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant's records show that he was awarded the Sharpshooter Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).  His records do not show any achievements or special recognition during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 18 January 1979, for disobeying a lawful order of a superior noncommissioned officer (NCO) on or about 14 January 1979.  His punishment consisted of forfeiture of $84.00 pay for 1 month, 7 days of restriction, and 7 days of extra duty; 

	b.  On 12 March 1979, for being absent without leave (AWOL) during the period on or about 1 March 1979 through on or about 5 March 1979.  His punishment consisted of forfeiture of $97.00 pay for 1 month, 7 days of restrictions, and 7 days of extra duty; 

	c.  On 20 April 1979, for failing to go at the time prescribed to his appointed place of duty on three separate occasions, on or about 15 and 30 March 1979 and on or about 2 April 1979.  His punishment consisted of a forfeiture of $100.00 pay per month for 2 months, 15 days of restriction, and 15 days of extra duty; 

	d.  On 5 June 1979, for failing to obey a lawful order from a commissioned officer on or about 17 May 1979.  His punishment consisted of forfeiture of $50.00 pay for 1 month (suspended for 30 days) and 7 days of extra duty; 

	e.  On 26 November 1979, for missing unit movement, through neglect, on or about 2 November 1979, being drunk on duty on or about 1 November 1979, and willfully disobeying a lawful order of a superior commissioned officer on or about 17 November 1979.  His punishment consisted of reduction to private (PVT)/E-1, forfeiture of $112.00 pay for 1 month, 14 days of restrictions, and 14 days of extra duty; 


	f.  On 7 December 1979, for going from his guard with intent to abandon the same on or about 30 November 1979, being disrespectful in language toward a superior NCO on or about 30 November 1979.  His punishment consisted of forfeiture of $112.00 pay for 1 month, 14 days of extra duty, and 14 days of restriction; and 

	g.  On 4 February 1980, for twice failing to go at the prescribed time to his appointed place of duty on or about 15 January 1980, disobeying a lawful order of a superior NCO on or about 15 January 1980, and being disrespectful in language and deportment toward a superior NCO on or about 15 January 1980.  His punishment consisted of 14 days of extra duty and 14 days of restriction. 

5.  On 7 January 1980, the applicant’s immediate commander notified the applicant that he was being recommended for separation from the Army under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) for unsuitability.  The applicant acknowledged this notification on the same date. 

6.  On 10 January 1980, the applicant was evaluated by a medical corps doctor based on being considered for discharge because of unsuitability.  The DA Form 3822-R (Report of Mental Status Evaluation) indicated that the applicant was mentally responsible, able to distinguish right from wrong and able to adhere to the right, had the mental capacity to understand and participate in board proceedings, and met the retention standards prescribed in Army Regulation
40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  The remarks section of the form also contained the entry, “Normal mental status exam.”

7.  On 30 January 1980, the applicant was advised by counsel of the contemplated separation for unsuitability under the provisions of chapter 13 of Army Regulation 635-200 and its effects, of the rights available to him, and the effect of any action taken by him in waiving those rights.  He further indicated that he understood that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he further understood that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and state laws.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement.  

8.  On 10 April 1980, the applicant’s immediate commander initiated action recommending the applicant’s separation in accordance with chapter 13 of Army Regulation 635-200 for unsuitability by reason of apathy, lack of appropriate interest, defective attitude and inability to expend efforts constructively.  The immediate commander remarked that the applicant was counseled by his chain of command; but, the counseling had not been effective with regard to his duty performance or conduct.  He could not maintain nor had the drive or desire to perform in a military manner.  

9.  On 14 April 1980, the intermediate commander recommended approval of the applicant’s unsuitability discharge.  He further remarked that the applicant had been counseled and that continued military service would not have produced the quality Soldier desired by the Army. 

10.  On 25 April 1980, the separation authority approved the applicant's discharge under the provisions of chapter 13 of AR 635-200 for unsuitability and directed that he receive a General Discharge Certificate.  Accordingly, the applicant was discharged on 6 May 1980.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time confirms he completed 1 year, 5 months, and 17 days of creditable active military service with 4 days of lost time due to AWOL.  

11.  There is no indication in the available record which shows he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

12.  Chapter 13 of Army Regulation 635-200, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability.  Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that:  the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability.  Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality.  Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available.  A general or honorable discharge was considered appropriate.  

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to an honorable discharge

2.  The applicant’s entire record of service was considered.  However, there is no evidence in the available records and the applicant did not provide any evidence showing his acts of indiscipline were the result of alcohol problems.  Even if the applicant suffered from an alcohol addiction problem, there were many other avenues to address this problem had the applicant chosen to use them.  

3.  The evidence of record shows that the applicant accepted nonjudicial punishment on 7 different occasions for various infractions and disciplinary problems.  Accordingly, his chain of command initiated separation action against him.  The applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.

4.  The reason for discharge and the characterization of service were both proper and equitable.  Further, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his general discharge to fully honorable.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact his local/regional VA representative who can best advise him on his eligibility for VA benefits.

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.


															XXX
      ______________________
               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)                                         AR20080016717



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ABCMR Record of Proceedings (cont)                                         AR20080016717



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