PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:                      5 October 2000
	DOCKET NUMBER:             AR2000044163

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

	Mr. Carl W. S. Chun		Director	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Elzey J. Arledge		Member	
	Mr. Jaime Perez		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his undesirable discharge be upgraded to an honorable discharge. 

3.  The applicant states that being discharged for his offenses was too harsh compared to today’s standards.

4.  The American Legion, as counsel for the applicant, contends that the applicant’s discharge is too harsh and his abuse of alcohol diminished his ability to serve.  Counsel also states that the applicant’s acts of misconduct were, for the most part, related to his abuse of alcohol.  Counsel further states that under current standards, a person diagnosed with alcoholism would be given an opportunity to enter an alcohol rehabilitation program for treatment of the disease.  Counsel goes on to state that, in the applicant’s case, he was not given such an opportunity and it would have been very difficult for him to overcome the disease of alcoholism on his own.  Counsel requested that the Board’s final decision reflect sound equitable principles consistent in law, regulation, policy and discretion.

5.  The applicant’s military records show that he enlisted on 27 May 1947 and continued to serve through a series of continuous reenlistments.

6.  The applicant’s DD Form 789 (Unit Punishment Record) shows that he received three company punishments for a traffic violation, missed reveille and for being AWOL from 24 March 1958 to 27 March 1958 (4 days).   His punishment consisted of restriction, an oral reprimand and reduction to the pay grade of E-3.  

7.  The applicant was convicted by a special court-martial on 24 April 1958 of being AWOL from 4 April 1958 to 14 April 1958 and for breaking restriction.  His sentence consisted of a forfeiture of pay and confinement at hard labor for
6 months.  His sentence was adjudged and approved on 24 April 1958.

8.  The applicant was convicted by a summary court-martial on 10 May 1958 of being absent from his appointed place of duty.  His sentence consisted of a forfeiture of pay and 30 days confinement.  His sentence was adjudged and approved on 10 May 1958.

9.  On 3 June 1958, the applicant underwent a psychiatric evaluation, which 
diagnosed him as having an anti-social personality.  The psychiatrist indicated that in the 14 months with his present unit he has had several company punishments and courts-martial for AWOL in a conscious attempt to obtain separation from the Army under administrative regulations.  The psychiatrist determined that there was no evidence of nervous or mental disorder nor of 

physical disease or defect sufficient to warrant separation under medical regulations.  He also determined that the applicant was sane, capable of distinguishing right from wrong and considered responsible for his acts.  The psychiatrist recommended separation under the provisions of Army Regulation 635-208.

10.  On 4 June 1958, the applicant’s commander requested that the applicant appear before a board of officers to determine his eligibility for discharge under the provisions of Army Regulation 635-208.  He cited as the basis for his recommendation the applicant’s habitual drinking which affected his duty performance and the unsuccessful attempts to rehabilitate the applicant.  

11.  The applicant was convicted by a summary court-martial on 7 June 1958 of being AWOL from 3 June 1958 to 6 June 1958.  His sentence consisted of a forfeiture of pay and 30 days confinement.  

12.  On 9 June 1958 he was ordered to appear before a board of officers on 16 June 1958 to determine if he should be discharged from the service prior to his expiration term of service (ETS) under the provisions of Army Regulation 
635-208.  The applicant appeared before the board without counsel and elected not to testify in his own behalf.

13.  The applicant was present during all open sessions of the board and was afforded full opportunity to cross exam each witness and to present evidence and or witnesses in his own behalf.  The board of officers recommended that the applicant be discharged under the provisions of Army Regulation 635-208 for undesirable habits and traits of character with an undesirable discharge.

14.  The applicant was discharged on 24 July 1958.  He had a total of 7 years, 
2 months, and 6 days of active federal service and 66 days of lost time due to AWOL and confinement.

15.  The applicant’s medical records are unavailable for review by this Board.

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

17.  Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel having undesirable habits and traits of character.  Paragraph 2 of the regulation provided, in pertinent part, for the separation of personnel where there was evidence of an antisocial or amoral trend, chronic alcoholism, drug addiction, pathological lying, or misconduct.  An undesirable discharge was normally considered appropriate.

18.  Army Regulation 635-200, in effect today, sets forth the basic authority for the separation of enlisted personnel. Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse.  A member who has been referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. 

CONCLUSIONS:

1.  Evidence of record shows that the applicant’s administrative separation on 24 July 1958 was accomplished in accordance with regulations then in effect. 

2.  While the applicant’s acts of misconduct are not condoned by this Board, the undesirable discharge appears to be unduly harsh considering that the applicant had an anti-social personality disorder which contributed to his disciplinary actions and court-martial convictions of AWOL.

3.  The Board noted that counsel for the applicant indicated that the applicant’s discharge was too harsh, that alcohol abuse diminished his ability to serve and
that his acts of misconduct were, for the most part, related to his abuse of alcohol.  Counsel also stated that under current standards, a person diagnosed with alcoholism would be given an opportunity to enter an alcohol rehabilitation program for treatment of the disease.  Counsel further stated that, in the applicant’s case, he was not given such an opportunity and that it would have been very difficult for him to overcome the disease of alcoholism on his own.  

4.  In today’s Army, a soldier who exhibits such abuse of alcohol is referred for treatment and rehabilitation in a local Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  However, there was no ADAPCP in effect at that time and attempts to rehabilitate the applicant were unsuccessful.

5.  The Board notes that had the applicant received the benefit of such a program and was unwilling to complete the rehabilitation program, a general discharge would normally be considered.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected: 

a.  by showing that the individual concerned was separated from the service with a General Discharge Certificate on 24 July 1958; and

b.  by issuing to him a General Discharge Certificate, dated 24 July 1958, in lieu of the undesirable discharge of the same date now held by him.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

SLP_____  EJA____  JP______  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_SHIRLEY L POWELL______
		        CHAIRPERSON

INDEX

CASE ID	AR2000044163	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001005	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19580724	
DISCHARGE AUTHORITY	AR 635-208 	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.		
3.		
4.		
5.		
6.