BOARD DATE:	  16 July 2009

		DOCKET NUMBER:  AR20090002611 


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 general discharge under honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he started drinking in excess at Fort Hood, TX.  He states he was treated at the hospital for alcoholism.  He states he was told he would be discharged from the Army with a general discharge under honorable conditions and it would automatically be upgraded to an honorable discharge after 6 months.  He states he was a good Soldier until the disease of alcoholism stole his career away from him.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 13 October 1981, 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 records show he enlisted in the Regular Army on 12 June 1979 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 19D (Cavalry Scout).

3.  On 1 November 1979, the applicant was assigned to the Combat Support Company, 1st Battalion, 67th Armor, 2nd Armored Division at Fort Hood, TX.

4.  On 11 July 1980, the applicant was arrested by Killeen, TX police for public intoxication and jailed at the Killeen Police Department (KPD).  There is no further disposition of this offense available for review.

5.  On 27 February 1981, the applicant was arrested by Killeen police for driving while intoxicated (DWI) and jailed at KPD. 

6.  A letter from Headquarters III Corps and Fort Hood, dated 16 March 1981, notified the applicant his driving privileges on Fort Hood were suspended and referred him to the installation alcohol/drug program for evaluation.   He was also advised his driving privileges would not be restored until he obtained a certificate of completion from the Installation Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  No further disposition of this offense was available for review.

7.  On 8 July 1981, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave from 5 July to 8 July 1981.

8.  On 8 September 1981, the applicant's commander notified the applicant that the commander was initiating action to discharge him under the provisions of Chapter 13 of Army Regulation 635-200 for unsuitability based on apathy, lack of appropriate interest, a defective attitude, and an inability to expend effort constructively.

9.  The commander's letter advised the applicant of his right to have his case considered by a board of officers, appear in person before a board of officers, 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.  

10.  In a statement dated 9 September 1981, the applicant acknowledged that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Chapter 13 of Army Regulation 635-200 for unsuitability.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant waived counsel and stated that he was not submitting statements in his own behalf.  The applicant further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.

11.  On 15 September 1981, the applicant's commander recommended him for discharge due to unsuitability.  The commander's specific reasons for the recommendation for discharge were the applicant's failure to perform his duties and his expressed desire on numerous occasions to get out of the Army.  The commander stated the applicant had been counseled on five occasions and he was obviously resisting all attempts to be rehabilitated.  The applicant's intermediate commander recommended approval of the discharge.

12.  On 2 October 1981, the applicant received a mental status evaluation.  According to the DA Form 3822-R (Report of Mental Status Evaluation) 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.

13.  On 2 October 1981, the appropriate authority waived further rehabilitative 
requirements, approved the recommendation for discharge under the provisions of Chapter 13 of Army Regulation 635-200, and directed that the applicant be furnished a General Discharge Certificate.

14.  On 13 October 1981, the applicant was discharged under the provisions of Chapter 13 of Army Regulation 635-200 by reason of unsuitability - apathy, defective attitude or inability to expend effort constructively.  He had completed 
2 years, 3 months, and 29 days of active service that was characterized as under honorable conditions.  He had 3 days of time lost.

15.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

16.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy and homosexuality.  Paragraph 13-4c provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  The regulation requires that separation action will be taken, when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory soldier.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

17.  Army Regulation 635-200 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 U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the ADRB or the ABCMR requesting a change in the discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.

2.  The applicant's two alcohol-related offenses seem to indicate he may have been having a problem with alcohol abuse during his service at Fort Hood.  However, alcohol was not the reason stated by his commander for processing him for discharge.  He was discharged due to his failure to perform his duties in a satisfactory manner.

3.  The available evidence shows 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.



4.  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 or achievement.

5.  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.

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable.

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)                                         AR20090002611



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ABCMR Record of Proceedings (cont)                                         AR20090002611



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