IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100008369 


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 that his dishonorable discharge (DD) be upgraded to an honorable discharge.

2.  The applicant states that two Army regulations were violated in his discharge.  He was a licensed practical nurse (LPN) and was addicted to pain medication as a result of an injury he had while in the Army.  He took medication from the hospital where he was detailed and freely admitted this to U.S. Army Criminal Investigation Command (USACIDC, also known as CID) agents.

3.  The applicant continues that the regulation specifies that drug abuse is considered an occupational hazard for personnel who are licensed or privileged to provide direct patient care and a treatment assessment of drug-dependent Soldiers will be made independent of administrative or legal concerns.  As such, he should have been sent to an in-patient treatment program.

4.  The applicant details the financial problems his discharge has caused and adds that his discharge also cost him his marriage and career as an LPN.  He adds that he had an exemplary service record prior to the incident that led to his discharge, has been drug free for 15 years, and he is currently working on becoming a lawyer.

5.  The applicant provides a memorandum from the Drug and Alcohol Clinical Policy Officer of the Office of The Surgeon General (OTSG) dated 22 November 1993; excerpts from Army Regulation 40-68 (Quality Assurance Administration); memoranda from a CID Special Agent and the applicant's defense counsel; a letter from a staff sergeant; and a DA Form 1707 (Certificate of Parole).

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.  Initially, the applicant enlisted in the Regular Army on 25 May 1983 and served until he was honorably released from active duty on 27 March 1986 and transferred to the United States Army Reserve.  He served as medical specialist.

3.  He enlisted in the Regular Army once again on 22 January 1993 and was awarded the military occupational specialty of practical nurse.

4.  On 30 September 1993, pursuant to his pleas, the applicant was found guilty by a general court-martial of:

   a.  falsifying official records, with intent to deceive, between on or about 17 and 24 June 1993; 
   
   b.  wrongfully using Demerol on or about 17, 21, and 23 June 1993;
   
   c.  Larceny of military property of some value between on or about 17 and 
22 June 1993 and 23 and 24 June 1993.

5.  His sentence consisted of a reduction to pay grade E-1, a forfeiture of $300 pay for 37 months, confinement for 37 months, and a DD.

6.  Having considered all matters raised in a post-trial clemency petition with six enclosures, the convening authority approved the sentence and except for that portion of the sentence extending to a DD ordered it executed.  Execution of that part of the sentence adjudging confinement in excess of 15 months was suspended for 24 months.
7.  On 10 March 1994, the applicant was given parole.

8.  On 22 September 1994, the U.S Court of Military Appeals denied the applicant's petition for review.

9.  On 2 December 1994, the applicant's DD was ordered to be executed.

10.  Accordingly, on 29 December 1994, the applicant was issued a DD.

11.  The excerpt of Army Regulation 40–68 provided by the applicant, paragraph 7-4, does state "Drug abuse by [health care professionals] will be considered an occupational hazard."  However, the last sentence of this paragraph states "It should be noted that diversion and abuse is criminal misconduct and law enforcement involvement is appropriate."  This chapter prescribes the policy and procedures for identifying health care professionals with drug or alcohol problems and referring them to appropriate treatment.

12.  The memoranda from the CID Special Agent and the applicant's defense counsel show he was cooperative when he was arrested and tried.

13.  In the memorandum from the Drug and Alcohol Clinical Policy Officer of the OTSG, dated 22 November 1993, to the Commanding General, I Corps (the convening authority for the applicant's general court-martial), stated that the memorandum was being prepared on behalf of the applicant who was then in confinement and awaiting the general's review of the conviction.  He also explained that because of their constant exposure to drugs, drug abuse by health care providers was considered to be an occupational hazard by Army Regulation 40-68.  This regulation provided for the assessment of drug abusers and their entry into the appropriate drug treatment program.

14.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence 
imposed in the court-martial process and then only if clemency is determined to 
be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The regulation cited by the applicant identifies drug and alcohol abuse as occupational hazards for health care professionals, and it provides provisions to identify health care providers with such problems and to get them treatment for their drug or alcohol problems.  However, the very same regulation specifies that diversion and abuse is criminal misconduct and law enforcement involvement is appropriate.

2.  In this case the applicant pled and was found guilty of falsifying official documents with intent to deceive, of three specifications of wrongfully using a prescription drug, and of two specifications of larceny of military property.

3.  Whether or not the applicant's violations of the UCMJ were due to drug dependence is not an issue in this case.  His criminal activity placed him outside the scope of Army Regulation 40-68.  If the applicant believed that there was some sort of prohibition on trying him, it was a matter he should have addressed at trial or in the appellate process.

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

5.  It is noted that the memorandum from the Drug and Alcohol Clinical Policy Officer of the OTSG was dated 22 November 1993.  It is apparent this document was considered by the commanding general before he approved the court-martial sentence.  The officer making the statement said that it was intended for the commanding general in his review of the applicant's conviction and the commanding general stated that he had considered all matters that were raised in the post-trial clemency petition with six enclosures.

6.  The applicant's cooperation with CID Agents and at the trial is commendable and it appears he was rewarded in his sentence reduction and early parole.  However, this does not form the basis to upgrade a properly-issued discharge.

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)                                         AR20100008369



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ABCMR Record of Proceedings (cont)                                         AR20100008369



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