RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           26 February 2004                   
	DOCKET NUMBER:   AR2003090931

	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. Arthur A. Omartian		Chairperson	
	Mr. John T. Meixell		Member	
	Ms. Mae M. Bullock		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 under honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he was an alcoholic, but did not realize it.  His alcoholism was responsible for his discharge.  He has been sober for more than 1 year.

3.  The applicant provides nothing in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 16 December 1996.  The application submitted in this case is dated 9 May 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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 
3-year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

3.  On 20 February 1980, the applicant enlisted in the Delayed Entry Program.  On 22 April 1980, he was honorably separated from the Delayed Entry Program and he enlisted in the Regular Army for 4 years, training in military occupational specialty (MOS) 05C (Radio Teletype Operator), a cash enlistment bonus, and an assignment in Germany.  Following completion of all required training, he was awarded MOS 05C and assigned to Germany on 28 October 1980.  The highest grade he achieved was pay grade E-4.  

4.  On 20 July 1981, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice was imposed against the applicant for disobeying a lawful order and for having a female soldier in his barracks room on 2 July 1981.  His punishment included the forfeiture of $100 pay per month for 1 month (suspended for 90 days), and 14 days of extra duty.

5.  On 24 May 1982, NJP was imposed against the applicant for consuming alcoholic beverages during duty hours on 10 May 1982.  His punishment included reduction from pay grade E-4 to pay grade E-1 (suspended until November 1982), the forfeiture of $200 pay per month for 2 months, and 45 days of extra duty and restriction.  On 16 August 1982, NJP was imposed against him for drunk driving and operating a privately-owned vehicle while without lights inside the Hoechst City (Germany) Park.  His punishment included reduction from pay grade E-4 to pay grade E-1 and 45 days of extra duty and restriction.

6.  On 13 October 1982, the applicant underwent a medical examination and was determined to be qualified for separation.

7.  On 19 October 1982, the applicant underwent a mental status evaluation to determine his potential for retention.  This document indicates the participated in the Alcohol and Drug Abuse Prevention and Control Program; however, the paperwork showing his progress is no longer contained in the available record.  At the time, the applicant’s chain of command reported he demonstrated moderate duty performance, arriving late for duty, and that several attempts at rehabilitation had failed.  The examining official indicated that the applicant stated his reason for drinking was his failed marriage.  He also stated that the applicant expressed no desire to improve his duty performance or remain on active duty, and that he appeared immature and very impulsive.  He was cleared for any administrative actions deemed appropriate by the command.

8.  On 26 October 1982, NJP was imposed against him for operating a privately-owned vehicle while drunk without a valid United States Army Europe (USAREUR) operator license, and for failing to stop at a red light on 12 September 1982.  His punishment included the forfeiture of $250 pay for 2 months, and 60 days of restriction.

9.  On an unknown date, the commander officially notified the applicant that he was being recommended for separation under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance.  He was advised of the basis for the contemplated separation action and the rights available to him.

10.  On 13 December 1982, the applicant acknowledged notification of the commander’s intent to separate him and he waived further legal representation.  He also waived consideration of his case by a board of officers, and he did not submit a statement in his own behalf.  On the same date, the applicant’s commander recommended separation under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance.  The commander cited as the basis for his recommendation the above offenses and that the applicant had 

demonstrated habitual shirking, and unsatisfactory performance that had resulted in reduction.  The commander also cited the applicant had received counseling and failed to develop into a satisfactory and productive soldier; and that his behavior was not due to an incapacity or inability to become a satisfactory soldier so much as his apathy, or lack of desire to soldier.

11.  On 14 December 1982, the appropriate authority waived further rehabilitation requirements, approved the separation recommendation, and directed the issuance of a general discharge. 

12.  On 29 December 1982, the applicant was discharged under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance with a general discharge.  He had completed 2 years, 8 months and 8 days of creditable active military service.  He had no recorded lost time.

13.  On 16 December 1996, the ADRB denied the applicant’s request for an upgrade of his discharge. 

14.  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.  
A general or an honorable discharge is warranted, a general discharge is considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

3.  If, in fact, the applicant abused the Army’s alcohol policies and abused alcohol, he knowingly risked his military career and diminished the quality of his service below that meriting an honorable discharge.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 16 December 1996; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 15 December 1999.  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

__aao___  __jtm___  __mmb___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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 for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003090931	
SUFFIX		
RECON		
DATE BOARDED	20040226	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19821229	
DISCHARGE AUTHORITY	AR635-200, Chap 13	
DISCHARGE REASON	A49.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	144.4900	
2.		
3.		
4.		
5.		
6.