RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 August 2005 DOCKET NUMBER: AR20050001066 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. Alan Chin Analyst The following members, a quorum, were present: Mr. John N. Slone Chairperson Ms. Deborah S. Jacobs Member Mr. Michael J. Flynn Member 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, in effect, that his general, under honorable conditions discharge be upgraded to an honorable discharge. 2. The applicant states, in effect, that: a. he was assaulted on 13 December 1980 while stationed at Fort Campbell [Kentucky] where he was kicked and punched several times to the head and face by several people in the barracks; b. that he was treated for cuts, multi-abrasions, contusions to the forehead and temples, fractured jaw, and severe pain. He claims he was in an inpatient status for 11 weeks; c. that he was released from the Army under chapter 9 of Army Regulation 635-200 because he was unable to perform his duties due to his trauma; d. and that he suffers from Post Traumatic Stress Disorder (PTSD), emotional distress, chemical imbalance, short term memory loss, mental instability, and alcoholism. 3. The applicant provides a copy of a self-authored letter, dated 18 January 2005; a copy of a medical consultation, dated 20 May 1982; a copy of an undated Kentucky EMS Systems hospital emergency room form; and a copy of Standard Form 600 (Chronological Record of Medical Care), dated 13 December 1980. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 29 July 1982, the date of his discharge from the service. The application submitted in this case is dated 18 January 2005. 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 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. The applicant’s service personnel records show he enlisted in the Regular Army on 5 August 1980 for a period of 3 years. He successfully completed basic and advanced individual training and was awarded the military occupational specialty 13F10 (Fire Support Specialist). The highest grade the applicant held was the rank of private/pay grade E-2. 4. Records show that on 31 March 1981, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty and for disobeying a lawful order from a noncommissioned officer on 12 March 1981. His punishment included forfeiture of $116.00, extra duty for 14 days, and restriction to the battery area for 14 days. 5. On 7 July 1981, the applicant accepted nonjudicial punishment under Article 15, UCMJ, for disrespect toward a commissioned officer on 14 June 1981. His punishment included reduction to the rank of private/pay grade E-1, forfeiture of $116.00, and correctional custody for seven days. 6. The applicant was advanced back to the rank of private/pay grade E-2 on 1 February 1982. However, on 3 March 1982, the applicant accepted nonjudicial punishment for wrongfully using provoking words toward and for disobeying a lawful order from a noncommissioned officer. His punishment included reduction to the rank of private/pay grade E-1, forfeiture of $120.00, extra duty for 14 days, and restriction to the battery area for 14 days (suspended until 1 June 1982). 7. A letter from Headquarters, 101st Airborne Division (Air Assault) [Fort Campbell, Kentucky], dated 3 June 1982, provided the following synopsis of the applicant’s Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) activities. The Clinical Director stated, in effect, that: a. the applicant was admitted to the ADAPCP on 12 March 1982; b. he participated in a treatment program of awareness education and group and individual training; and c. his progress was evaluated to be unsatisfactory and he should be considered a rehabilitation failure. 8. On 3 June 1982, the Alcohol and Drug Control Officer concurred with the recommendation of the Clinical Director. 9. On 6 July 1982, the applicant’s commander notified him that he was initiating action to discharge him under the provision of chapter 9 of Army Regulation 635-200 based on his failure to successfully complete the ADAPCP and his continuous abuse of alcohol. The applicant acknowledged receipt of the initial notification on the same day. 10. The commander advised the applicant of his right to submit statements in his own behalf; the right to military legal counsel; and the right to undergo a complete medical examination. The applicant was directed to complete the rights election section within 3 days of the official notification. On 9 July 1982, the applicant refused to sign the applicable section. 11. On 9 July 1982, the applicant’s commander recommended him for discharge under the provision of chapter 9 of Army Regulation 635-200 due to alcohol rehabilitation failure. 12. On 9 July 1982, the appropriate authority approved the recommendation for discharge under the provision of chapter 9 of Army Regulation 635-200 and directed that the applicant be furnished a General Discharge Certificate. 13. On 29 July 1982, the applicant was discharged under the provisions of chapter 9 of Army Regulation 635-200, due to alcohol rehabilitation failure, with a characterization of service of under honorable conditions. He had completed 1 year, 11 months, and 25 days of active service. 14. The applicant submitted medical documentation to show that he was in fact assaulted and that he received medical treatment for his injuries received. 15. Evidence of records also show that the applicant received a Letter of Commendation, dated 29 October 1981, for his participation and performance in capturing the intra-battalion flag football championship for 1981; he successfully completed the Basic Skills Education Program II through Pikes Peak Community College [Fort Campbell, Kentucky] in November 1981; he completed high school and received his High School Equivalency Certificate through the State of Kentucky on 28 April 1982; and he completed the Jungle Warfare Training Course as a Jungle Expert through the Jungle Operations Training Center at Fort Sheridan, Panama on 7 May 1982. 16. On 18 March 1983, the applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge. On 22 September 1983, the ADRB reviewed and denied the applicant’s request for upgrade. The ADRB determined that the applicant’s discharge was proper and equitable and that the discharge was properly characterized as under honorable conditions. 17. 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. 18. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 9 of this regulation contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse. A member who has been referred to 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. At the time of the applicant’s separation an honorable or general discharge was authorized. 19. Chapter 4 of Army Regulation 600-85 (Army Substance Abuse Program), in pertinent part, governs the separation of Soldiers for alcohol and other drug abuse. Paragraph 4-26 specifically states that Soldiers who are rehabilitation failures will be processed for administrative separation when the unit commander determines that further rehabilitation efforts are not practical and that rehabilitation is a failure. 20. Army Regulation 635-200 provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his general discharge under honorable conditions should be upgraded to an honorable discharge. 2. The applicant contends that he was physically assaulted on 13 December 1980, resulting in his inability to perform his duties because of the trauma, leading to his discharge from the service. While the applicant submitted medical evidence of treatment for the injuries he sustained in the assault, there is no evidence to show the assault affected his ability to perform his duties. On the contrary, evidence of record shows that between the time of his assault and the time of his discharge he demonstrated his ability to excel. During this period he received a Letter of Commendation in October 1981; he successfully completed the Basic Skills Education Program II in November 1981; he received his High School Equivalency Certificate on 28 April 1982; and he completed the Jungle Warfare Training Course as a Jungle Expert on 7 May 1982. 3. The applicant also claims he suffers from PTSD and other psychological problems and warrants a discharge upgrade. There is no evidence and the applicant has provided no evidence that shows he suffered then or suffers now from PTSD or any other psychological problems that was the cause of his indiscipline and subsequent separation. Based on these facts, his contention is not sufficiently mitigating to warrant relief. 4. The applicant's failure to cooperate with treatment with ADAPCP clearly shows he did not meet the standards of acceptable conduct and performance of duty for Army personnel. 5. Evidence of record shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The records contain no indication of procedural or other errors that would tend to jeopardize his rights. 6. The ABCMR begins its consideration of each case with the presumption of administrative regularity. In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case. 7. In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement. 8. Based on all of the foregoing, there is insufficient basis to upgrade the applicant's discharge. 9. Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 22 September 1983. As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 21 September 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 timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __DSJ__ __JNS___ __MJF___ 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. _____John N. Slone _____ CHAIRPERSON INDEX CASE ID AR20050001066 SUFFIX RECON DATE BOARDED 20050811 TYPE OF DISCHARGE GD DATE OF DISCHARGE 19820729 DISCHARGE AUTHORITY AR 635-200, CHAP 9 DISCHARGE REASON ALCOHOL ABUSE BOARD DECISION DENY REVIEW AUTHORITY MR. CHUN ISSUES 1. 144.0000 2. 3. 4. 5. 6.