IN THE CASE OF:	  

		BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20110000891 


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 bad conduct discharge be upgraded. 

2.  The applicant states he was addicted to heroin at the time.  Addiction is a disease; therefore, he should have been given treatment.  He adds that his lawyer should have requested a medical screening to determine his addiction and that the heroin was for personal use not for sale.  He adds that he has been off drugs for many years and though he regrets it, his bad discharge is unfair.  

3.  The applicant provides no additional evidence 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's military records show he enlisted in the Regular Army on 10 May 1979.  He completed initial entry training and was awarded the military occupational specialty of medical specialist.  The highest rank/grade he held was specialist four/E-4.

3.  The applicant accepted nonjudicial punishment (NJP) on the following dates:

   a.  On 23 January 1981, for wrongfully having in his possession some amount of marijuana and for transferring one quarter gram, more or less, of marijuana in the hashish form on 8 December 1980;
   
   b.  On 6 November 1981, for wrongfully having in his possession some amount of marijuana.

4.  Three DA Forms 4465 (ADAPCP Military Client Intake and Follow-up Record) covering the period April to August 1980 contained in his records indicate he was treated for an alcohol problem as a self/voluntary referral.  This form does not indicate use of illegal drugs.

5.  On 25 February 1982, a special court-martial convicted the applicant of wrongfully having in his possession 0.54 grams, more or less, of a habit-forming narcotic drug, heroin.  He was sentenced to be discharged from the service with a bad conduct discharge, to be confined at hard labor for 5 months, to forfeit $360.00 pay for 6 months, and to be reduced to pay grade E1.  The sentence was adjudged on 25 February 1982.  The convening authority approved only so much of the sentence as provided for a bad conduct discharge, 4 months confinement, forfeiture of $360.00 pay for 4 months, and reduction to pay grade E1.

6.  On 21 June 1982, the findings of guilty and the sentence were affirmed by the U.S. Army Court of Military Review.  Special Court-Martial Order Number 277, dated 6 November 1982, shows the sentence was affirmed.  This order shows the appellate review was completed and the sentence was ordered executed.

7.  Accordingly, on 1 December 1982, the applicant was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Separations), as a result of court-martial, other.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 3 years, 3 months, and 9 days of active service.  Item 18 (Remarks) shows he was retained in the service 99 days for the convenience of the government and that he had lost time under 10 USC 972 during the period 820225-820509 and lost time after his normal expiration term of service date from 820510-820607.
8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  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.  

   b.  Paragraph 3-11 provides 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.

9.  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.  He accepted NJP on two occasions.  Initially he accepted NJP for wrongfully having in his possession some amount of marijuana and for transferring marijuana; his second NJP was for possessing marijuana.  He was also convicted by a special court-martial of possessing heroin.  Therefore, the applicant knowingly violated the Army's drug abuse policies on at least three occasions by having drugs in his possession.

2.  He contends he was addicted to heroin, the heroin he had was for personal use, and he should have been given treatment because addiction is a disease.  If he was addicted to heroin he should have told ADAPCP about his addiction and gotten treatment.  He was convicted of possession of heroin (not for selling heroin) and he has provided no evidence that he was addicted to heroin.

3.  The applicant was issued a bad conduct discharge pursuant to the approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence ordered executed.  His conviction and discharge were affected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

5.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's 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)                                         AR20110000891



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ABCMR Record of Proceedings (cont)                                         AR20110000891



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