RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 December 2006
      DOCKET NUMBER:  AR20060005675


      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. Wanda L. Waller               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Mr. Donald Steenfott              |     |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 clemency be granted in the form
of a general discharge.

2.  The applicant states, in effect, that he had back problems in the
service and the Department of Veterans Affairs (DVA) will not review his
case without a desirable discharge.  He contends that he was addicted to
heroin for some time after his discharge and that he finally got sober in
1983.  He believes the Army should have put him through rehabilitation
instead of jailing him for his problem and that the heroin was a “weapon of
war” used on troops in Vietnam.  He points out that he did recover and
became a good citizen.

3.  In one of his applications, the applicant states that he was not
represented by counsel in his original “consideration” and that changes in
policy, law, or regulation might require a change of discharge.

4.  The applicant provides three applications; a copy of his DD Form 214
(Report of Separation from Active Duty); five character reference letters;
and an honor award.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted on 19 February 1971 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 68F (aircraft electrician).  He
served in Vietnam from 12 April 1972 through 29 January 1973.

2.  On 19 March 1973, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from 13 March 1973 to 16
March 1973.  His punishment consisted of a forfeiture of pay and extra
duty.

3.  On 15 May 1973, in accordance with his plea, the applicant was
convicted by a special court-martial of being AWOL from 28 March 1973 to 4
April 1973.  He was sentenced to be reduced to E-1 and to forfeit $70 pay
per month for 2 months.  On 29 May 1973, the convening authority approved
the sentence.

4.  On 2 August 1973, in accordance with his plea, the applicant was
convicted by a special court-martial of violating a lawful general
regulation (selling 2 pills containing phencyclidine (a depressant)).  He
was sentenced to be discharged from the service with a bad conduct
discharge, to forfeit $200 pay per month for 6 months, and to be confined
at hard labor for 5 months.  On 7 September 1973, the convening authority
approved the sentence.
5.  On 7 December 1973, after serving his sentence to confinement, the
applicant was placed on excess leave pending completion of appellate
review.

6.  On 23 May 1974, the U.S. Army Court of Military Review affirmed the
findings of guilty and the sentence.  On 15 July 1974, the bad conduct
discharge was ordered to be executed.

7.  Accordingly, the applicant was discharged with a bad conduct discharge
on
4 October 1974 under the provisions of Army Regulation 635-200, chapter 11,
as a result of a court-martial.  He had served 3 years and 9 months of
total active service with 217 days of lost time due to AWOL and
confinement.  Item 8 (Character of Service) on the applicant’s DD Form 214
(Report of Separation from Active Duty) incorrectly shows his
characterization as under other than honorable conditions instead of a bad
conduct discharge.

8.  There is no evidence of record which shows the applicant was diagnosed
with drug abuse or dependency prior to his discharge.

9.  The applicant provided five character reference letters from his
pastor, a local law enforcement official, and two friends associated with
Alcoholics Anonymous. They attest that the applicant has maintained an
active role with drug rehabilitation programs, that he is a model citizen,
that he has been clean and sober for 20 years, and that he is a law abiding
citizen.

10.  On 29 May 1975, the Army Discharge Review Board (ADRB) denied the
applicant’s request for a discharge upgrade.  On 28 June 1979, the ADRB
again denied the applicant’s request for a discharge upgrade.

11.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Chapter 11 of this regulation, in effect at the
time, states that a Soldier will be given a bad conduct discharge pursuant
only to an approved sentence of a general or special court-martial.  The
appellate review must be completed and the affirmed sentence ordered duly
executed.

12.  Section 1552(f), Title 10, United States Code states that the Army
Board for Correction of Military Records can only review records of court-
martial and related administrative records to correct a record to
accurately reflect action taken by reviewing authorities under the Uniform
Code of Military Justice or to take clemency action.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

2.  Although the applicant contends that he was addicted to heroin while in
the service, there is no evidence of record which shows he was diagnosed
with drug dependence prior to his discharge.  Since he provided no evidence
to show he was forced to use this illegal drug, the fact he was addicted to
it has little relevance to the misconduct for which he was discharged.

3.  Good post service conduct alone is normally not a basis for upgrading a
discharge.

4.  The character reference letters submitted on behalf of the applicant
fail to show that his discharge was unjust and should be upgraded.

5.  The applicant’s record of service included one nonjudicial punishment,
two special court-martial convictions, and 217 days of lost time.  As a
result, his record of service was not satisfactory.  Therefore, clemency in
the form of a general discharge is not warranted in this case.

6.  Since the applicant’s DD Form 214 incorrectly shows his
characterization of service as under other than honorable conditions
instead of a bad conduct discharge, it appears that clemency has already
been inadvertently granted in that his punitive discharge is reflected as
an administrative discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

LS_____  _PM_____  __DS____  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

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.



                                  ___Linda Simmons______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005675                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061205                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19741004                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 11                   |
|DISCHARGE REASON        |Result of a court-martial               |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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