IN THE CASE OF:	  

		BOARD DATE:  19 April 2012

		DOCKET NUMBER:  AR20110018487 


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 correction of his record to show he received a "chapter 13 disability discharge" vice a chapter 14-33b (misconduct –frequent incidents of a discreditable nature with civil or military authorities) discharge.

2.  He states:

	a.  at the age of 18 he developed an alcohol dependency problem due to his being stationed overseas in Wildflecken, Germany, a remote geographic location, isolated from his support systems with no guidance;  

   b.  he turned to alcohol because it made him feel good, but it always resulted in him getting into trouble;

   c.  due to having alcohol-related problems and the fact that alcohol is a chronic, progressive, and potentially fatal disease that affects you psychologically, physically, and socially, he should have received a disability discharge; and
	
   d.  his discharge is unjust due to the fact that whenever he was in trouble it was alcohol related and "they" never attempted to enroll him in an alcoholic treatment program in an attempt to "cure" his alcohol disease.



3.  He provides

* DD Form 214 (Report of Separation from Active Duty)
* two self-authored letters
* a memorandum

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 New York Army National Guard (NYARNG) on 
5 August 1976.  On 1 June 1977, he was involuntarily ordered to active duty as the result of unsatisfactory participation in the NYARNG.  He was assigned to Company A, 2d Battalion, 15th Infantry Regiment, 3rd Infantry Division, Germany (Wildflecken).

3.  His record contains an Army Europe (AE) Form 113-3 (Record of Formal Counseling under the provisions of Paragraph, 13-7, Army Regulation 635-200 (Personnel Separations)), dated 18 July 1977, for continually shirking his share of platoon duty, agitating other people, acting like a street punk, and pushing the endurance of the other people in his platoon.

4.  He received nonjudicial punishment under Article 15, Uniform Code for Military Justice (UCMJ) on four occasions for the following offenses:

	a.  26 August 1977, for three offenses of using disrespectful language toward a noncommissioned officer, two offenses of disobeying a lawful command from a commissioned officer, and striking a noncommissioned officer on 13 May 1977;

	b.  29 June 1978, for willfully destroying a plaque on a military police vehicle on 23 June 1978 and assault on a Soldier on 25 June 1978;

	c.  31 August 1978, for breaking restriction and disobeying lawful orders on 
July 1978; and
	
   d.  10 October 1978, for not having his identification card, being drunk and disorderly, and resisting being lawfully apprehended by the military police on 
8 September 1978.

5.  His record contains an AE Form 3087 (Report of Psychiatric Evaluation), dated 7 September 1978.  The examining physician diagnosed him with passive-aggressive personality and habitual excessive drinking and determined the applicant was mentally responsible and had no mental disease or defect sufficient to warrant disposition through medical channels.

6.  His record contains evidence which shows the following summary of facts concerning his discharge:

	a.  4 October 1978, he was notified of the company commander's intent to recommend his discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct;

	b.  5 October 1978, he authenticated by his signature an AE Form 113-2 (Response to Election of Rights) under the provisions of Army Regulation 
635-200, which shows he:

		(1)  was advised by counsel of the basis for his separation under the provisions of paragraph 14-33b(1) for misconduct;

		(2)  waived consideration by a board;

		(3)  elected not to submit statements on his behalf; and

		(4)  waived representation by counsel.

	c.  6 October 1978, the company commander recommended discharge under the provisions of Army Regulation 635-200, paragraph 14-33b(1) misconduct - frequent incidents of a discreditable nature with civil or military authorities;

	d.  10 and 26 October 1978, respectively, the battalion and brigade commanders reviewed the discharge proceedings and found them to be legally sufficient;

	e.  7 November 1978, the approval authority approved the discharge action and directed the issuance of an Under Honorable Conditions Discharge Certificate.
7.  On 24 November 1978, the applicant was discharged accordingly.  The 
DD Form 214 he was issued shows in:

	a.  item 9c (Authority and Reason) the entry Paragraph 14-33b(1), Army Regulation 635-200, and Separation Program Designator (SPD) code JKA (pattern of misconduct); and

	b.  item 9e (Character of Service) the entry "Under Honorable Conditions."

8.  He submitted a memorandum, subject:  Reason for Separation, dated 
5 October 1978, that shows:

	a.  he circled "I DO" desire a copy of my DD Form 214 and "I REQUEST" a separate document explaining the narrative reason for my separation;

	b.  the reason for his separation from active duty on 24 November 1978
was misconduct - frequent incidents of a discreditable nature with civil or military authorities;

	c.  the regulatory or statutory authority for his separation was Army Regulation 635-200, paragraph 14-33b(1); and

	d.  he was ineligible for reenlistment unless a waiver was granted. 

9.  The applicant’s medical records are unavailable for review.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a Medical Evaluation Board (MEB) if the condition is listed in Army Regulation 40-501 (Standards of Medical Fitness).

12.  Army Regulation 40-501 provides that Soldiers with conditions listed in chapter 3 of this regulation who does not meet the required medical standards will be evaluated by an MEB as defined in Army Regulation 40-400 (Patient Administration) and will be referred to a Physical Evaluation Board (PEB) as defined in Army Regulation 635-40.  Alcohol dependency is not listed in this chapter.
13.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of the regulation in effect at the time provided for separation due to inaptitude, personality disorder, apathy, and homosexuality (tendencies, desires, or interest but without overt homosexual acts).  The regulation required that separation action would be taken when, in the commander’s judgment, the individual would not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory Soldier.  Service of Soldiers separated because of unsuitability under this regulation was characterized as honorable or under honorable conditions.

14.  Army Regulation 635-200, 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, and convictions by civil authorities.  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 discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have received a medical discharge base on alcohol abuse was carefully considered and found to be without merit,

2.  The evidence of record shows the applicant had four Article 15's and he was separated with a general discharge, under honorable conditions discharge by reason of misconduct - frequent incidents of discreditable nature with civil or military authorities.  

3.  His report of psychiatric evaluation shows he readily admitted to drinking in excess, but there is no evidence that shows he sought treatment for alcohol or related medical problems.  In addition, there is no evidence in the record and the applicant failed to provide evidence that shows his alcohol dependency would have warranted consideration by a PEB.  In addition, Army regulations do not list alcohol dependency as a condition that is eligible for referral to an MEB or PEB.  Consequently, there is no basis for granting the applicant's request to correct his records to show that he was medically discharged.

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)                                         AR20110018487



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ABCMR Record of Proceedings (cont)                                         AR20110018487



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