MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           20 May 1999     
	DOCKET NUMBER:   AC93-09489A
                                              AR1999016306

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Ms. L. L. Harrison		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Hubert O. Fry		Member	
	Ms. Margaret V. Thompson		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                       records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Reconsideration of his previous application to correct his records by upgrading his discharge to honorable.

APPLICANT STATES:  In effect, that while suffering from the disease of addiction he was convicted as if he was of sound mind.  He would like an upgrade to honorable.

COUNSEL CONTENDS:  In effect, counsel concurs in the applicant's presentation and requests that all reasonable doubt be resolved in the applicant's favor.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 22 September 1993 (COPY ATTACHED).

The Manual for Courts-Martial, provides that it is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts.  Mental disease or defect does not otherwise constitute a defense.  The accused is presumed to have been mentally responsible at the time of the alleged offense.  This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.

The Manual for Courts-Martial, also 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:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s addiction is not a defense or excuse for crime.  That this standard of conduct is accepted not only by the military but by society as a whole is demonstrated by the fact that drunk drivers are held legally responsible for the results of their behavior even though they are shown to be alcoholic.

2.  In the absence of medical evidence that at the time of the discharge, or trial, the misconduct that led to the discharge the applicant was so impaired by a  mental, emotional, psychological or psychiatric condition that he could not both tell right from wrong and adhere to the right, the contention relating to such condition does nothing to demonstrate an injustice in the discharge.

3.  His unsubstantiated claims of post-service recovery and employment
are insufficient to justify any relief.

4.   Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file.  It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit.  The Board has never denied an application simply because it was not submitted within the required time.

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___EMW_ ___HOF_  ___MVT__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC93-09489A/AR1999016306	
SUFFIX		
RECON	 	
DATE BOARDED	19990520 	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES        1.	105.00	
2.		
3.		
4.		
5.		
6.