BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100018691 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

2.  He states:

* the character of his discharge is inequitable, it is not consistent with the policies and traditions of the U.S. Army
* he indulged in alcohol and crack cocaine before he entered the Army and tested positive for narcotics after he entered the Army
* the Army took no action to correct his substance abuse
* he had trouble adjusting mentally while he was on active duty because he was bipolar
* he was absent without leave (AWOL) due to his addiction and mental state

3.  He provides letters from the Veterans Coordinator at People in Progress, Incorporated, dated 8 July 2010, and a Mental Health Counselor II at the San Fernando Valley Community Center, Incorporated, dated 27 September 2010.  

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 enlisted in the Regular Army on 5 December 1979 for a period of 4 years.  He marked “No” in block 35c on his DD Form 1966/5 (Record of Military Processing – Armed Forces of the United States) indicating he had never been involved in the use, purchase, possession, or sale of marijuana, LSD [Lysergic Acid Diethylamide], or any other harmful or habit-forming drugs and/or chemicals, except as prescribed by a licensed physician.  

3.  His service record includes DA Forms 4187 (Personnel Action) which show he was in an AWOL status on 16 May 1980, was dropped from the rolls on 14 June 1980, and surrendered to military authorities on 14 June 1982. 

4.  He underwent a mental status evaluation and the psychiatrist determined he:

* had the mental capacity to understand and participate in the proceedings
* was mentally responsible
* met the retention requirements of Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness)

5.  His company commander notified him of the proposed recommendation to discharge him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-23, for misconduct – AWOL.  He was advised of his rights.  

6.  He acknowledged notification of the separation action, consulted with legal counsel, waived consideration of his case by an administrative separation board, and he did not submit statements in his own behalf.  

7.  The separation authority waived rehabilitation requirements and directed discharge under the provisions of Army Regulation 635-200, paragraph 14-23 for misconduct – AWOL with a UOTHC Discharge Certificate.

8.  On 10 February 1983, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-23 for misconduct - AWOL.  He completed 2 years, 1 month, and 7 days of active service with 759 days of time lost.

9.  He provided a letter, dated 8 July 2010, from the Veterans Coordinator at People in Progress, Incorporated (Inc.) which stated he enrolled in the program on 14 June 2010 and he:

* made progress in the program and complied with all rules and regulations
* interacted well with staff and other residents
* tested negative on all random tests for substance abuse
* completed all aspects of the 12-step dynamics of the program

10.  He provided a letter, dated 27 September 2010, from a Mental Health Counselor II at the San Fernando Valley Community Mental Health Center, Inc. which stated he was an active participant in the Project New Start and the Cornerstone FCCS programs on 13 July 2010.  

11.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14-23 of the regulation in effect at the time, stated absentees or deserters who had returned to military control would be discharged without trial when the unauthorized absence was continuous for 1 year or longer.  

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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not indicate that an error or injustice exists in the applicant’s case.  



2.  Although he contends he tested positive after he entered the Army and the Army took no action to correct his substance abuse, the evidence of record does not support his contentions.  

3.  He has provided no evidence other than his self-authored statement that the circumstances regarding his substance abuse and mental state were the reasons he committed the offense of being AWOL which led to his discharge.  Even if so, he had the responsibility to resolve his personal problems through other means to include seeking help from his chain of command.  

4.  His service record shows he was AWOL from 16 May 1980 to 13 June 1982 for a period of 759 days.

5.  It appears the applicant's chain of command determined his overall military service did not meet the standards for a general or an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as UOTHC.  There is insufficient evidence that would warrant an upgrade to either honorable or general discharge at this time.

6.  The letters from the People in Progress, Inc. and the San Fernando Valley Community Mental Health Center, Inc., were acknowledged.  However, these letters were prepared subsequent to his service on active duty and are insufficient as a basis to grant relief in this case.  

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)                                         AR20100018691



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ABCMR Record of Proceedings (cont)                                         AR20100018691



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