IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000433 


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 upgrade of her under other than honorable conditions discharge.

2.  The applicant states her commander did not want to help her with her alcohol problem.  She states she has health problems due to her alcohol dependency.  She states she has been diagnosed with hepatitis C and cirrhosis of the liver because of her alcohol dependency she acquired in the military.

3.  The applicant provides copies of:

* a Preoperative Medical Evaluation from Long Island College Hospital, Brooklyn, NY, dated 15 October 2009
* one page of her enlistment contract
* a Department of Veterans Affairs (VA), Fast Letter 02-11, dated 18 April 2002

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 she enlisted in the Regular Army on 29 December 1986 in pay grade E-3 for a period of 4 years for training in the military occupational specialty of 91P (X-ray Specialist).  She had previously served 6 months and 4 days of active service and 1 year, 4 months, and 6 days of inactive service.

3.  On 6 February 1987, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to her appointed place of duty.  She appealed the punishment and her appeal was denied.

4.  On 9 February 1987, the applicant was command referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for evaluation for admission due to her testing positive for cocaine during a command urinalysis.  She was recommended for Track II, Urine Surveillance Program.

5.  On 30 April 1987, court-martial charges were preferred against the applicant for:

* failing to go at the prescribed time to her appointed place of duty
* two specifications of being absent from her unit
* wrongfully using cocaine between 5 January and 4 February 1987
* wrongfully using marijuana between 5 February and 2 March 1987

6.  On 1 May 1987, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel, chapter 10, for the good of the service - in lieu of court-martial.  She acknowledged she understood the offense she was charged with and she was:

* making the request of her own free will
* guilty of the offense for which she was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised she may be furnished an Under Other Than Honorable Conditions Discharge Certificate

7.  In addition, the applicant was advised she may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge and she:

* would be deprived of many or all Army benefits
* may be ineligible for many or all Veterans Administration (VA) benefits
* may be deprived of her rights and benefits as a veteran under both Federal and State laws

8.  A captain of the Judge Advocate General's Corps countersigned this statement and attested that he had counseled the applicant concerning the:

* basis for her contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ
* possible effects of an under other than honorable conditions discharge if her request was approved
* procedures and rights available to her

9.  On 12 May 1987, the appropriate authority approved the applicant's request for discharge for the good of the service and directed she be issued an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 18 May 1987, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  She had completed 4 months and 20 days active service that was characterized as under other than honorable conditions.

11.  The applicant's military service records do not show any disciplinary counseling or actions that were related to alcohol.

12.  The applicant's service medical records do not show any treatment for alcoholism or any treatment for alcohol-related incidents.  There is no diagnosis of alcohol dependency in her service medical records.

13.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade her discharge.  On 26 July 1989, the ADRB reviewed her request and determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized 

punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7b, states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her under other than honorable conditions should be upgraded because she didn't receive any help for her alcohol problem.  She contends she has been diagnosed with hepatitis C and cirrhosis of the liver because of alcoholism.

2.  The applicant's military service and medical records do not contain any reference to an alcohol problem.  She was referred to ADAPCP for her use of cocaine.  There is no substantiating evidence the applicant's problems in the Army were alcohol-related or that she became alcohol-dependent while in the Army.  Therefore, her contention is not supported by the evidence of record.  In any case, while in ADAPCP she could have addressed any alcohol problem with the counselors.

3.  The applicant voluntarily requested discharge and admitted guilt to the offense for which she was charged.  She acknowledged that she could receive an under other than honorable conditions discharge and that she may be ineligible for many or all Army benefits, to include benefits administered by the VA.  She also acknowledged she may be deprived of her rights and benefits as a veteran under both Federal and State laws.

4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

5.  The applicant accepted NJP less than 45 days after she enlisted in the Regular Army.  She then tested positive for cocaine, she was referred to ADAPCP, and then she tested positive for marijuana.  This clearly shows her service during the 4 months since her enlistment to be unsatisfactory.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

7.  In view of the foregoing, there is no basis for upgrading the applicant's discharge to a general discharge 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)                                         AR20100000433



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ABCMR Record of Proceedings (cont)                                         AR20100000433



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