RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           20 November 2003                  
	DOCKET NUMBER:   AR2003089184

	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	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert L. Duecaster		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 discharge be upgraded.

2.  The applicant states that he was physically attacked by his drill sergeant and lost all respect for the Army and himself.  He started drinking and became an alcoholic.  He states that when he received his 30 day leave before he was to go to Vietnam his drinking got worse and he was unable to make his departure location due to having used all his money on alcohol.  He states that he remained drunk until three and a half years ago.

3.  He dates the discovery of the alleged error or injustice as 1970.  He believes the Board should find it in the interest of justice to consider the case because he needs the upgrade to qualify for care from the Department of Veterans Affairs.

4.  The applicant provides only his personal statement.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 29 March 1972 the date of his discharge.  The application submitted in this case is dated 14 March 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 the 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 limitations 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.  He entered active duty on 4 June 1970 and successful completed training.

4.  He was absent without leave (AWOL) on three occasions, 7 June 1971 through 8 August 1971, 13 August 1971 through 24 January 1972, and 13 March 1972 through 29 March 1972.  He was also shown to have been in pretrial confinement from 28 January 1972 through 17 February 1972 and on excess leave from 18 February 1972 through 12 March 1972.

5.  Upon return from his second period of AWOL he was placed in pretrial confinement following court-martial charges being preferred for his first two periods of AWOL on 16 February 1972.

6.  On 17 February 1972, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulations 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he was guilty of the stipulated offenses or lesser-included charges, that he could be discharged under other than honorable conditions and receive an undesirable discharge (UD).  He acknowledged that this type of discharge would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UD and that there is no automatic upgrading or review of a less than honorable discharge.

7.  The discharge authority approved the request on 1 March 1972 and directed that the applicant be issued an undesirable discharged.

8.  He also requested and was approved for excess leave pending the outcome of his discharge request.  The excess leave was to expire on the 20th day or when notified to return for separation.  The applicant failed to return from excess leave as directed and was considered AWOL from 13 March 1972 through 29 March 1972.

9.  The applicant was discharged on 29 March 1972, under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  He had 1 year, 1 month, and 21 days of creditable service with 290 days of lost time due to AWOL, confinement, and excess leave.

10.  The record contains no evidence of alcohol abuse nor any request for treatment of an alcohol problem.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

12.  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.

13.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no evidence of the alleged alcohol abuse either during or subsequent to service.  

2.  An indication that intoxication is a legally inadequate defense, both in the military and in 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.

3.  Records show that the applicant should have discovered the injustice now under consideration on 29 March 1972.  Thus, the applicant should have filed an application with the ABCMR within 3 years from 29 March 1972.  However, the applicant did not do so and has not provided a compelling explanation justifying failure to file within the 3-year statute of limitations.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JHL____  __LDS __  __RLD __  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 or to excuse the applicant’s failure to file this application with the ABCMR within the 3-year statute of limitations.  Therefore, the Board does not excuse the applicant’s failure to timely file within the time prescribed by law and this application is denied for that reason.

		______________________
		        CHAIRPERSON

24 November 2003

MEMORANDUM FOR RECORD

SUBJECT:  ABCMR Record of Proceedings

1.  Reference ABCMR Case Numbers AR2003089185, AR2003090926, AR2003085199, AR2003098945, AR2003090923, AR2003090057, AR2003092852, AR2003089184, AR2003086983, AR2003090233, AR2003087428, AR2003091296, AR2003086564, AR2003090872, AR2003086107, AR2003089598, AR2003088131, AR2003084919, AR2003093189.

2.  This certifies the ABCMR panel vote of referenced cases on 20 November 2003.

3.  I disagree with so much of the BOARD DETERMINATION/RECOMMENDATION, which states that “the Board does not excuse the applicant’s failure to timely file within the time proscribed by law and this application is denied for that reason.”  I would deny relief solely on the basis that the applicant has failed to show error or injustice.  This represents a minority opinion.  

						        Signed
						Joann H. Langston
						Chairperson

INDEX

CASE ID	AR2003089184	
SUFFIX		
RECON		
DATE BOARDED	20031220	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	144 9319	
2.		
3.		
4.		
5.		
6.