BOARD DATE:	  20 August 2013

		DOCKET NUMBER:  AR20130001271 


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 his under other than honorable conditions discharge to an honorable discharge.

2.  He states it was an injustice to be discharged from the Army one month prior to his expiration of term of service.  He adds he should have been in an alcohol treatment program and provided counseling for alcohol dependency instead of being kicked out of the Army.

3.  He provides a self-authored statement and a DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 (RA) on 8 September 1978 for a period of 4 years.  He served 2 years in Germany from 29 January 1979 to
25 January 1981.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on five separate occasions:

* 10 December 1979 for wrongfully taking a red leather coat valued at $200.00 on 22 November 1979
* 1 December 1981 for failing to go at the time prescribed to his appointed place of duty on 16 and 20 November 1981
* 24 December 1981 for failing to go at the time prescribed to his appointed place of duty on 3 and 14 December 1981 and for being found intoxicated at his appointed place of duty on 3 December 1981
* 7 January 1982 for wrongfully using marijuana on 6 December 1981
* 28 April 1982 for being absent from his place of duty on 26 and 27 April 1982

4.  The applicant's health record contains four DA Forms 4465 (ADAPCP (Alcohol and Drug Abuse Prevention and Control Program) Military Client Intake and Follow-up Record).  These forms indicated the applicant was enrolled into the ADAPCP and underwent individual counseling/therapy on a regular basis while assigned in Pirmasens, Germany.  He received a 60, 120, 180, and
360-day follow-up report wherein his efficiency, conduct, and progress were listed as "good" with the exception of his 120-day follow-up report that listed his conduct and progress as fair.

5.  Additionally, his record contains a DA Form 4466 (ADAPCP Client Progress Report), dated 17 February 1982, while assigned to Fort Bragg, NC.  This form shows he was enrolled in Track II and he was not progressing.  He had a satisfactory efficiency but unsatisfactory conduct rating and he was pending a chapter 14 discharge by reason of misconduct.

6.  His record is void of a charge sheet, a mental status evaluation, and/or a separation medical examination.

7.  On 28 July 1982, he consulted with counsel and he 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 trial by court-martial.  He acknowledged he was being charged with failing 

to obey a lawful order from a superior commissioned officer in violation of
Article 90, UCMJ.

8.  In his request for discharge, he indicated he was making the request of his own free will and he had not been subjected to coercion whatsoever by any person.  He acknowledged he understood if his request was accepted he could receive a discharge under other than honorable conditions and that by submitting his request he was admitting he was guilty of the charges against him.  He further acknowledged he understood if he received a discharge under other than honorable conditions he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.  A statement in his behalf was not contained in his available record.

9.  On 2 August 1982, the separation authority, a lieutenant general, approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduced to the lowest enlisted grade.

10.  On 4 August 1982, he was discharged accordingly.  He completed 3 years,
9 months, and 24 days of creditable active service with time lost from 5 to 
23 May 1982 and 1 to 14 July 1982.

11.  On 22 December 1986, he appealed to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 14 April 1988, after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  As a result, the ADRB denied his request for a discharge upgrade.

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

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given 

under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

	b.  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.

	c.  Paragraph 3-7b provides that 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 applicant contends, in effect, that his alcohol dependency influenced his behavior and that he should have been in an alcohol treatment program instead of being discharged.  The evidence or record shows he was enrolled in the ADAPCP, he underwent individual counseling/therapy while assigned in Germany, and he continued this program at Fort Bragg.  Additionally, he was pending a chapter 14 separation for "unsatisfactory progress" prior to pending court-martial charges and requesting a chapter 10 discharge in lieu of trial by court-martial.  Therefore, his contention that he was kicked out of the Army without being offered counseling is not supported by the evidence of record.

2.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Although a copy of the charge sheet was not in his available record, the evidence shows he admitted he was guilty of the offense for which he was charged.  The record also shows he voluntarily requested separation under the provisions of Army Regulation
635-200, chapter 10, to avoid trial by court-martial.

3.  His record of service included five NJPs and over 30 days of time lost.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service as unsatisfactory.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting him an honorable or a general discharge.

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)                                         AR20130001271



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ABCMR Record of Proceedings (cont)                                         AR20130001271



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