RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           9 December 2003                  
	DOCKET NUMBER:   AR2003088454

	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. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Ms. Eloise C. Prendergast		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his general discharge (GD) under honorable conditions be upgraded to a fully honorable discharge (HD). 

2.  The applicant states, in essence, that he was separated as a result of drug and alcohol abuse; that he was never offered treatment for his addictions, therefore, his performance was unsatisfactory.  He states that he still battles the disease and he wants his discharge upgraded so that he may be qualified to receive veteran's medical benefits/treatment.  He also states that he was only 17 years of age at the time of enlistment and that he left high school and went into the military.  He had never used drugs or alcohol prior to his enlistment.  

3.  The applicant provides a 1-page letter in support of his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 10 January 1983.  The application submitted in this case is dated 14 January 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 21 January 1981, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 10 June 1981, at age 18, he was discharged from the DEP and enlisted in the Regular Army for 3 years, training in military occupational specialty (MOS) 31V (Tactical Communications Systems Operator) and assignment to Europe upon completion of the required training.  He completed the training requirements and he was awarded MOS 31V and assigned to Germany.  

4.  On 10 June 1982, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for being disrespectful in language and for twice willfully disobeying a lawful order given by a noncommissioned officer (NCO) on 21 May 1982.  His punishment included the forfeiture of $144 pay per month for 1 month and 14 days of extra duty and restriction.  

5.  Between May and August 1982, the applicant was counseled on five separate occasions for various reasons, to include the proper maintenance of his uniform, a substandard appearance, substandard performance, an immature attitude, a lack of respect for authority, for being disrespectful in language towards his superiors, and for failure to report to his place of duty on time. 

6.  On 10 August 1982, during a health and welfare inspection, a smoking device that tested positive for marijuana was found in the applicant's wall locker.  On 1 September 1982, NJP was imposed against him for wrongfully having in his possession a smoking device containing marijuana residue in the hashish form and for using disrespectful language towards a commissioned officer on 10 August 1982.  His punishment included reduction from pay grade E-2 to pay grade E-1, the forfeiture of $275 pay per month for 2 months, and 45 days of extra duty and restriction.

7.  On 24 September 1982, a bar to reenlistment was approved against the applicant.  The bases cited for the bar were:  the NJP's listed above; that the applicant was unresponsive to counseling; and that he lacked concern for his military obligation. 

8.  On 15 October 1982, the applicant's commander was informed that the applicant failed to show up to attend counseling at the Crailsheim Sub-Community Clinic on 14 October 1982.  

9.  On 8 December 1982, the applicant underwent both a mental status evaluation and a medical examination and was determined to be qualified for separation. 

10.  On 13 December 1982, the applicant's commander was advised that the urine specimen the applicant provided during a urinalysis testing on 10 December 1982 was water and not a legitimate urine sample.

11.  On 17 December 1982, the applicant's commander officially notified him that he was being recommended for discharge under the provisions of chapter 13, Army Regulation (AR) 635-200 for unsatisfactory performance with an GD. 

12.  On an unknown date, the applicant acknowledged notification of the commander’s intent to separate him.  He consulted with legal counsel concerning the basis for the contemplated separation action and the rights available to him.  He was informed that he was not entitled to a personal appearance before an administrative separation board.  The available records do not contain a statement submitted by the applicant.

13.  On 19 December 1982, the appropriate authority approved the separation recommendation and directed the issuance of a GD.  

14.  On 10 January 1983, the applicant was separated for unsatisfactory performance under the provisions of chapter 13, Army Regulation 635-200 with a GD.  His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows that he had completed a total of 1 year, 7 months and 1 day of creditable active military service.  

15.  There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under that board's 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  Both the characterization of service and the narrative reason for separation are commensurate with the applicant’s overall record of military service.

2.  The evidence available indicates that although the applicant never requested treatment for any problems that he may have experienced with alcohol and drugs, he was afforded such treatment at the Crailsheim Sub-Community Center.  The evidence further indicates the applicant refused to comply with drug screening requirements and command-referred counseling.  

3.  The applicant, in abusing alcohol and violating the Army's policy not to possess or use illegal drugs, compromised the trust and confidence placed in him as a Soldier.  The applicant, as a Soldier, had the duty to support and abide by the Army's alcohol and drug policies.  By abusing alcohol and using illegal drugs, he knowingly risked his military career and diminished the quality of his service below that meriting a fully honorable discharge.  

4.  Eligibility for veteran's benefits (to include veterans medical benefits) does not fall within the purview of this Board, but resides with the Department of Veterans Affairs. 

5.  The Board does not grant relief solely for the purpose of gaining veterans benefits.

6.  The applicant met entrance qualification standards, to include age, at the time of enlistment.  There is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

7.  Records show the applicant should have discovered the injustice now under consideration on 10 January 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 10 January 1986.  However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mdm___  __rjw___  __ecp___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

			Mark D. Manning
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003088454	
SUFFIX		
RECON		
DATE BOARDED	20031209	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19830610	
DISCHARGE AUTHORITY	AR635-200, Chap 13	
DISCHARGE REASON	A49.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.4900	
2.		
3.		
4.		
5.		
6.