BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140008034 


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 reconsideration of his previous request for an upgrade of his discharge to honorable and to entitlement of unspecified benefits.

2.  The applicant states the previous decisional document did not address a head injury he sustained that has affected his normal thought process.  He alleges he was pushed out of his bunk by his drill sergeant, sustaining a head injury requiring 8 to 10 stitches.  He avers that the Board has "willfully and intentionally, if not sadistically and maliciously" denied him entitlement to benefits by covering up the incident of his head injury due to racial and religious discrimination.  He repeats his previous contentions that he did not have any foot problems prior to entry and that it was improper combat boots that caused his foot problems; therefore, he is entitled to some unspecified benefits. 

3.  The applicant provides no supporting documentation.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The applicant references the NAACP, Muslim American Veterans Association, and a private attorney on his request for reconsideration; however, there is no indications that any of the three referenced organizations or counselors were actually contacted by the applicant and agreed to act as counsel. 



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130000483, on 27 August 2013.

2.  The applicant's contentions that he sustained a head injury that impacted his ability to serve honorably and that he is facing racial and religious discrimination constitutes new issue/argument not previously considered by the Board.

3.  On 24 March 1979, at 17 years of age, the applicant enlisted in the U.S. Army Reserve (USAR).  His records show he successfully completed basic combat training (BCT) and advanced individual training (AIT).  

4.  On 4 September 1980, he enlisted in the USAR under the Delayed Enlistment Program (DEP) for subsequent enlistment in the Regular Army on 18 November 1980 at nearly 19 years of age.  

5.  On 29 November 1980, the applicant received treatment for a laceration requiring stitches to the right frontal area of the head.  In the narrative for the reason for treatment it is stated he fell out of bed.  A blood alcohol test was conducted and it was determined that he had been intoxicated at the time of the injury.  

6.  On 20 June 1981, the applicant was treated for a laceration to his right leg.  He had not sought treatment for this injury until two days after he reported it had occurred.  There is an indication the laceration may have occurred while the applicant was intoxicated.

7.  On 23 July 1981, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being drunk and disorderly in the billets.

8.  On 14 April 1982, the applicant received NJP for being drunk on duty while part of the Pond Barracks Reaction Force (Amberg, Germany).

9.  His command initiated separation action on 2 June 1982 under Army Regulation 635-200 (Enlisted Personnel Separations), paragraph 5-31 (Expeditious Discharge Program (EDP)).  The applicant acknowledged he had been provided the opportunity to consult with counsel and he indicated he understood he could expect to encounter substantial prejudice in civilian life if his service were characterized as under honorable conditions.  He elected to submit a statement in his own behalf.

10.  In his statement to the chapter notification, the applicant noted that he had not only received two NJP's for alcohol-related incidents but had also been reprimanded for "mouthing off" to noncommissioned officers; however, he stated his period on the correctional custody facility had caused him to learn his lesson.

11.  The applicant was discharged under the EDP under honorable conditions with general discharge on 12 July 1982.

12.  Army Regulation 635-200 (Personnel Separations) provides policy and sets forth procedures for administrative separation of enlisted personnel.

   a.  Paragraph 5-31, then in effect, provided for the EDP.  This program provided for the discharge of individuals who had completed at least 6 months but less than 36 months of active duty and who demonstrated by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential that they could not or would not meet acceptable standards.  Such personnel were issued an honorable discharge or a general discharge under honorable conditions, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had be given the opportunity to consult with legal counsel.

   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 state that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  

13.  Army Regulation (Line of Duty Policy, Procedures, and Investigations) prescribes policies and procedures for investigating the circumstances of disease, injury, or death of a Soldier.  It states that an injury, disease, or death in incapacitation because of the abuse of intoxicating liquor is not in line of duty.  It is due to misconduct.  While merely drinking alcoholic beverages is not misconduct, one who voluntarily becomes intoxicated is held to the same standards of conduct as one who is sober.  Intoxication does not excuse misconduct.  

14.  The Manual for Courts-Martial, as then in effect, and the edition currently effective, both state 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.
   
15.  Article 112 (Drunk on Duty), Uniform Code of Military Justice states any person subject to this chapter other than a sentinel or look-out, who is found drunk on duty, shall be punished as a court-martial may direct.  Authorized punishment includes a punitive discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has failed to provide any evidence that he incurred any medical conditions relating to his feet during his military service.

2.  The applicant's contention that he sustained a head injury as a result of being pushed out of his bunk by his drill sergeant is contradicted by the medical record wherein he stated he fell out of his bunk and the evidence showing he was intoxicated at the time of that injury.  He also did not contradict that information when he provided a statement with his chapter notification.

3.  The record shows the applicant had a problem with alcohol during his entire period of active duty service.  The first record of this problem is the 29 November 1980 treatment for the head laceration.  He had a laceration to his leg in June 1981 that was believed to have been incurred while he was intoxicated.  He was reported as being drunk and disorderly frequently and received NJP in July 1981 on this charge.  His service ended with the second alcohol-related NJP for being drunk on duty on 14 April 1982. 

4.  The applicant's second NJP for being drunk on duty could have resulted in his being discharged for misconduct with receipt of a under other than honorable conditions discharge or being court-martialed with receipt of a punitive discharge.  His command showed him significant leniency in discharging him under the EDP for which the worst discharge he could receive was the general discharge.

5.  The applicant has not provided and the record does not contain any evidence of racial or religious discrimination either during his period of service or at the time of the prior decisional document.  

6.  His allegation that the prior Board decision was an attempt to "willfully and intentionally, if not sadistically and maliciously" deny him entitlement to benefits by covering up the incident of his head injury is not supported by any evidence.  

7.  The applicant has failed to provide any evidence or argument warranting any change to the prior ABCMR decision.

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 to amend the decision of the ABCMR set forth in Docket Number AR20130000483, dated 27 August 2013.



	____________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)                                         AR20140008034



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ABCMR Record of Proceedings (cont)                                         AR20140008034



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