IN THE CASE OF:	  

		BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090010201 


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 under other than honorable conditions (UOTHC) discharge be changed to a medical discharge.

2.  The applicant states, in effect, that he had never used drugs or alcohol until he joined the Army.  He states that while assigned to Fort Hood, Texas his platoon leader and company members gave him drugs and alcohol.  He also states that he believes the military is at fault for his addiction to drugs and alcohol which destroyed his career and has made his life unmanageable.  He also believes he should have been received medical treatment for his addiction and not thrown in jail at Fort Leavenworth, KS and then just released out into the street with a drug problem.  He further states he believes he should have been medically discharged based on his addiction instead of being discharged under the provisions of chapter 14 with a UOTHC discharge.

3.  The applicant provides the following documents in support of his application:  Discharge Certificate; Phoenix House Letter, dated 22 January and 9 October 1996, and a Credentialed Alcoholism and Substance Abuse Counselor Trainee Certificate.


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 records show he enlisted in the Regular Army and entered active duty on 9 January 1980.  It also shows he was awarded and served in Military Occupational Specialty (MOS) 13B (Cannon Crewman), and the highest rank he attained while serving on active duty was private/E-2.  His record also shows he was reduced to private (PVT) for cause on 15 January 1980.

3.  The applicant's record shows that during his tenure on active duty he earned the Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar and Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar.  His record documents no acts of valor or significant achievement.

4.  There are no medical records in the applicant’s available Official Military Personnel File (OMPF) that indicate he was suffering from a disabling mental or physical condition at the time of his discharge processing. 

5.  The applicant's record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:  9 June 1980, for disobeying a lawful order and being disrespectful towards his superior noncommissioned officer (NCO); 25 August 1970, for disobeying a lawful order; and 15 October 1980, for being disrespectful in language and wrongfully communicating a threat towards his superior NCO. 

6.  On 20 October 1980, the unit commander prepared a Bar to Reenlistment Certificate on the applicant.  The reason cited for the action was the applicant's violation of Article 92 of the UCMJ, disobeying a lawful order and being disrespectful towards an NCO.  

7.  On 3 November 1980, the unit commander notified the applicant that he was initiating action to separate him under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations – Enlisted Separations), by reason of unsuitability- apathy, defective attitudes, or inability to expend effort constructively.

8.  On 3 November 1980, 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 this counseling, the applicant requested consideration of his case by a board of officers with personal appearance, and his right to consulting counsel.  He elected not to submit a statement on his own behalf.  He further requested a minority group officer be appointed as a member of the board of officers.

9.  On 6 November 1980, the appropriate authority approved the bar to reenlistment; the applicant acknowledged receipt of the action and elected not to submit a statement in his own behalf.

10.  On 9 December 1980, the board of officers that was scheduled to convene was postponed based on the outcome of pending court-martial charges against the applicant.

11.  On 18 December 1980, a summary court-martial found the applicant guilty of violating Article 121 of the UCMJ for on or about 9 December 1980 stealing various tools of a value of about $50.00 or less, the property of the United States. The resultant sentence was a forfeiture of $334.00 and 30 days in confinement at hard labor.

12.  On 13 January 1981, the approval authority disapproved the recommendation to discharge the applicant under the provisions of chapter 13.

13.  On 3 April 1981, the U.S. Army Retraining Brigade Commander recommended that the applicant be discharged under the provisions of paragraph 14-33, Army Regulation 635-200, by reason of misconduct – for frequent incidents of discreditable nature.  He stated the applicant had been sent to the Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty as a well-trained Soldier with an improved attitude and motivation.  However, the applicant's actions since arrival precluded accomplishment of the objective as evidenced by his behavior, attitude and ability.  


14.  On 14 April 1981, 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 this counseling, the applicant requested consideration of his case by a board of officers with personal appearance, and his right to consulting counsel.  He elected not to submit a statement on his own behalf.  He further requested a minority group officer be appointed as a member of the board of officers.

15.  The applicant was notified that a Board of Officers would be holding a hearing to determine whether he should be discharged prior to his expiration term of service date under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct- frequent incidents of a discreditable nature with military or civilian authorities.  

16.  On 9 June 1981, the Board of Officers recommended that the applicant be eliminated from the service for misconduct and issued a UOTHC discharge.  Subsequently, the Staff Judge Advocate office determined the evidence was legally sufficient to support discharge under the provisions of paragraphs 
14-33b (1) Army Regulation 635-200, and determined the Report of Proceedings to be legally sufficient.

17.  On 15 June 1981, the separation authority approved the separation action and directed the applicant receive a UOTHC discharge.  On 25 November 1981, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged in the rank of private/E-1 under the provisions of paragraph 14-33b(1), Army Regulation 635-200, by reason of misconduct.  It also shows that he had completed a total of 1 year, 5 months, and 11 days of creditable active military service and he had accrued 132 days of time lost due to being AWOL and in confinement during the period covered by the DD Form 214.

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

19.  Army Regulation 635-200 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 a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A UOTHC discharge is normally considered appropriate for members separated under these provisions of the regulation.  The separation authority may authorize a general under honorable conditions discharge (GD) or HD if warranted based on the member's overall record of service.

20.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), then in effect, established the Army Physical Disability Evaluation System (PDES) and set forth policies, responsibilities, and procedures that applied in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

21.  Chapter 3 of the same regulation provides guidance on presumptions of fitness.  It states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  Separation by reason of disability requires processing through the PDES.  

22.  Chapter 4 of the same regulation further states that the Physical Evaluation Board (PEB) evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been medically discharged because the military shared in the responsibility for his addiction to drugs and alcohol was carefully considered.  However, there is was insufficient evidence to support this claim.

2.  By regulation, the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements or the duties the Soldier may be expected to perform because of his or her office, grade, rank, or rating.  The applicant’s military medical record provides no indication that he suffered from a physical or mental condition that rendered him unfit to perform his military duties, or that would have warranted processing through the Army’s PDES at the time of his discharge.  

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  As a result, absent any evidence suggesting the applicant did not meet medical retention standards at the time of his discharge, there is an insufficient evidentiary basis to support granting the requested relief.  

4.  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 this requirement.

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)                                         AR20090010201



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ABCMR Record of Proceedings (cont)                                         AR20090010201



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