IN THE CASE OF:	

		BOARD DATE:	17 September 2009    

		DOCKET NUMBER:  AR20090007641 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, upgrade of his undesirable discharge to an honorable or a general, under honorable conditions discharge.  

2.  The applicant states he did not smoke, drink, or use illegal drugs prior to his enlistment in October 1969.  He began to drink after he witnessed a friend get electrocuted in Long Binh, Vietnam.  The applicant states he was assigned to the 160th Signal Telecommunication Operations in Long Binh and his job was changed from splicer [cable] to working the test desk at an operations center.  He arrived 12 days late at his next duty station at Fort Bliss, TX because of withdrawal from drugs.  As a result, he received an Article 15.  He contends that he asked for help, but all of his requests were ignored.  Eventually, he was back on drugs.  He explained that he was arrested by the border police with three balloons of heroin.  While he was in jail, he signed papers which indicated he did not want to continue his military career.  He was sentenced to 6 months observation at El Reno, OK and later he received 5 years probation.  His records at the Veterans Affairs (VA) Hospital in Coatesville, PA indicated he had Post Traumatic Stress Disorder (PTSD).  In 1980, he was convicted of aggravated manslaughter and sentenced to 8 1/2 to 16 years in the state prison in New Jersey.  He states he had 37 1/2 years of addiction to drugs and alcohol.  As of August 2009, he has been clean for 3 years.  He currently has severe arthritis as a result of climbing poles to fix cables in Vietnam.  He does not want money; he just wants treatment for his PTSD and arthritis.  He explained that he performed his job in Vietnam and in Texas.  Unfortunately, he got caught up with the wrong people during most of his life.  
3.  The applicant provides a copy of a civil action judgment and two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army (RA) on 2 October 1969.  At the completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 36E (cable splicer).  His highest grade attained was specialist four (SP4)/E-4.  He was assigned to Vietnam on 22 June 1970 with the U.S. Army Strategic Command, Telecommunication Operations Command as a cable splicer.  

3.  The applicant was honorably discharged on 10 September 1970 for immediate reenlistment.  He reenlisted on 11 September 1970 for a period of four years.  

4.  The applicant departed Vietnam on 8 May 1971 and he was reassigned to Fort Bliss as a field wireman.

5.  On 14 August 1971, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 15 June 1971 to 12 July 1971.

6.  The applicant's civil court proceedings are not available.  His DA Form 20 (Enlisted Qualification Record) shows he was in civil confinement pending disposition of charges for possession of heroin on 9 December 1971 and remained confined until 10 April 1972 (124 days).  

7.  The applicant's discharge packet is also not available for review.  However, his DD Form 214 shows he was discharged on 10 April 1972 under the 
provisions of Army Regulation 635-206 (Personnel Separations - Discharge -Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)), section IV, by reason of conviction by a civil court with an undesirable discharge.  During his current enlistment, he completed 1 year, 1 month, and 6 days of creditable active service with 152 days of lost time due to civil confinement and AWOL.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.  

9.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the UCMJ is death or confinement in excess of
1 year.  

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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.  The applicant's contentions regarding his requests for help with his drug addiction and alcohol problems were noted.  However, there is no evidence of record to substantiate his claim. 

2.  The applicant states he merely wants treatment for his PTSD and arthritis.  Unfortunately, these factors are not sufficiently mitigating to warrant relief in this case.  
3.  The applicant's DA Form 20 shows he was confined by civil court for possession of heroin for a total of 124 days.  As a result, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general, under honorable conditions or an honorable discharge.

4.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed the issuance of an undesirable discharge based on the applicant’s overall record of service and that the separation action was processed in accordance with the governing regulation.

5.  However, there is no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's requested relief.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ____x____  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.



      ___________x___________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090007641



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ABCMR Record of Proceedings (cont)                                         AR20090007641


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