IN THE CASE OF:	  

		BOARD DATE:	  28 July 2011

		DOCKET NUMBER:  AR20110000350 


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 general discharge be upgraded to honorable.

2.  The applicant states he became addicted to alcohol, marijuana, and other mind-altering substances after he joined the Army.  Army officials knew or should have known this and he should have been treated for his addiction.  Instead, the Army only dealt with his behavior.  If he had received help for his addiction he could have controlled his behavior.

3.  The applicant provides a letter from an addiction treatment program, dated 21 December 2010, stating the applicant has shown considerable progress since enrolling on 1 October 2010.  He has completed the written assignments and attends Alcoholics Anonymous and Narcotics Anonymous meetings on a weekly basis with a sponsor.

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 11 September 1986.  He completed training as a light vehicle mechanic.  He was advanced to pay grade E-2 in May 1987, to pay grade E-3 in September 1987, and to pay grade E-4 in October 1988.  He was awarded the Army Achievement Medal on 1 March 1989.

3.  He was stationed in Korea in July 1989 and was awarded the Driver and Mechanic Badge with Mechanic Bar on 14 August 1989.

4.  He was counseled for missing formation and work and for failing the physical fitness test, all on 12 September 1989.  On 29 September 1989, he was counseled regarding his unsatisfactory attitude, behavior, and performance during the month.

5.  The applicant was absent without leave from 3 through 29 December 1989 for which he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice.  On 5 April 1990, he received NJP for stealing property from an exchange store, assaulting a military law enforcement official by kicking him in the stomach, and resisting apprehension.  After apprehension, he was so combative and uncooperative that he could not be administered a breathalyzer test.

6.  On 7 May 1990, the company commander notified the applicant of his intent to recommend him for separation with an honorable discharge under the provisions of paragraph 14-12c of Army Regulation 635-200 (Personnel Separations).  The company commander noted the separation authority was not bound by the recommendation as to separation or type of discharge.

7.  The applicant consulted with counsel and was advised of his rights.  He elected representation by counsel but declined to submit statements in his own behalf.

8.  The company commander recommended the applicant for separation with an honorable discharge due to a pattern of misconduct and the battalion commander concurred.  The separation authority approved the separation; however, he directed that a general discharge be issued.

9.  On 23 May 1990, the applicant was separated for misconduct with a general discharge under the provisions of Army Regulation 635-200, chapter 14.  He completed 3 years, 7 months, and 16 days of creditable service.  His awards included the Army Achievement Medal, Army Service Ribbon, Overseas Service Ribbon, Driver and Mechanic Badge with Mechanic Bar, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include commission of a serious offense.  [At that time, a serious offense was one for which a punitive discharge was an authorized court-martial punishment for the same or a similar offense.]  Separation action is taken when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Discharge under other than honorable conditions is normally appropriate under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  

11.  The Manual for Courts-Martial, as then in effect and currently, states that voluntary intoxication not amounting to legal insanity, whether caused by alcohol or drugs, is not an excuse for an offense committed while in that condition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he became addicted to alcohol, marijuana, and other mind-altering substances after he joined the Army.  Army officials knew or should have known this and he should have been treated for his addiction.  Instead, the Army only dealt with his behavior.  If he had received help for his addiction he could have controlled his behavior.

2.  There is no indication in the available records that the applicant was addicted to alcohol or drugs.  The only available evidence relating to addiction is the letter submitted with his application and it is dated some 10 years after his discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons were appropriate considering all the facts of the 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 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)                                         AR20110000350



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110000350



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1