IN THE CASE OF:	  

		BOARD DATE:	  11 October 2011

		DOCKET NUMBER:  AR20110005829 


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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states:

	a.  he became addicted to morphine that was administered to him while he was in a military hospital in Japan.  He was wounded in combat in Vietnam and due to his injuries he was constantly administered morphine by the medical staff for severe pain and he developed an addiction.  He remained in the hospital in Japan most of 1969.  After he was released from the hospital he was in constant pain due to his combat injuries.  He repeatedly went to sick call and he was ignored.  In order to alleviate his pain he began purchasing and using illegal drugs.   

	b.  the civil charges cited by his commanding officer for his administrative discharge were dismissed.

	c.  he was placed in confinement for possession of heroin.  He used heroin to deal with his ongoing addiction and alleviate his pain.

	d.  he felt abandoned by the military establishment after putting his life on the line.  When he entered the Army voluntarily he was not an addict and had never used drugs in his life.  Now, through no fault of his own, he turned into an addict because the Army failed to detoxify him and then failed to adequately treat his ongoing severe pain as a result of combat injuries. 
	e.  he tested positive for heroin use and paragraph 4-1 (Special standards) of  chapter 4 (Miscellaneous Provisions) of Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) apply to him.    

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Service personnel records
* Service medical records
* Criminal Court of the City of New York Certificate of Disposition
* Proceedings of the Army Discharge Review Board (ADRB)

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 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 on 26 March 1968 for a period of 
3 years.  He completed his training and was awarded military occupational specialty 11H (Infantryman Direct Fire Crewman).  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 29 August 1968 until he was wounded in action on 28 February 1969 and transferred to the 7th Field Hospital in Japan on 9 March 1969.  He was transferred to Fort Dix, NJ on        22 July 1969. 

3.  On 24 January 1970, nonjudicial punishment (NJP) was imposed against the applicant for being derelict in the performance of his duties and unlawful entry of the supply room.

4.  A DA Form 19-32 (Military Police Report), dated 15 February 1970, states the applicant surrendered to civilian authorities in New York for rape (3rd degree) and kidnapping charges.  

5.  On 19 February 1970, NJP was imposed against the applicant for making a false official statement and wrongfully and dishonorably receiving unauthorized aid by copying another Soldier's examination paper.
 
6.  On 6 March 1970, charges were preferred against the applicant for possessing and selling heroin.

7.  On 23 April 1970, after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood he might encounter substantial prejudice in civilian life due to the issuance of an undesirable discharge.  He elected not to submit a statement in his own behalf.  

8.  On 8 May 1970, he underwent a separation physical examination and was found to be qualified for separation.

9.  On 9 May 1970, the intermediate commander recommended the applicant be discharged for the good of the Army and stated "He is pending charges in New York for 3d degree rape and kidnapping."

10.  On 22 May 1970, he underwent a psychiatric evaluation and was found mentally responsible.  He was diagnosed with passive-aggressive personality, chronic, moderate, manifested by intentional inefficiency, stubbornness, history of abuse of narcotics, and suspension from school.  He was psychiatrically cleared for any action deemed appropriate by his command.   

11.  On 9 June 1970, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

12.  On 16 June 1970, he was discharged accordingly for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 2 years, 2 months, and 20 days of creditable active service.



13.  Records show the civil charges of 3rd degree rape and kidnapping were dismissed on 10 July 1970.  

14.  There is no evidence which shows he was diagnosed with drug dependency prior to his discharge.  

15.  On 11 November 1974, the ADRB denied his request for a general discharge.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service.

17.  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.

18.  Paragraph 4-1a of Army Regulation 15-185 states pursuant to the 
27 November 1979 order of the United States District Court for the District of Columbia in Giles V. Secretary of the Army (Civil Action N. 77-0904), a former Army Solder is entitled to an honorable discharge if a less than honorable discharge was issued to the Soldier on or before 27 November 1979 in an administrative proceeding in which the Army introduced evidence developed by or as a direct or indirect result of compelled urinalysis testing administered for the purpose of identifying drug abusers (either for the purposes of entry into a treatment program or to monitor progress through rehabilitation or follow-up).

19.  Paragraph 4-1b of Army Regulation 15-185 states applicants who believe that they fall within the scope of paragraph a, above, should place the term "CATEGORY G" in block 11b of the DD Form 149.  Such applications should be 


expeditiously reviewed by a designated official, who will either send the individual an honorable discharge certificate if the individual falls within the scope of paragraph a, above, or forward the application to the Discharge Review Board if the individual does not fall within the scope of paragraph a, above.  The action of the designated office will not constitute an action or decision by the ABCMR.   

DISCUSSION AND CONCLUSIONS:

1.  He contends he became addicted to morphine that was administered to him while he was in the military hospital in Japan for most of 1969.  However, there is no evidence and he provided no evidence which shows he was diagnosed with drug dependency prior to discharge on 16 June 1970.  

2.  His contention that the civil charges cited by his commanding officer for his administrative discharge were dismissed was noted.  However, on 9 May 1970, the intermediate commander recommended approval of the applicant's voluntary request for discharge for the good of the service.  The recommendation also states the applicant's civil charges were pending, which was true because the applicant's civil charges were not dismissed until 10 July 1970.  

3.  He contends he tested positive for heroin use and paragraphs 4-1a and 4-1b, chapter 4, of Army Regulation 15-185 apply to him.  However, no evidence shows he was discharged for drug abuse (paragraph 4-1a).  He was discharged for possession and sale of heroin, not drug use.  Also, records show the ADRB denied his request for a general discharge on 11 November 1974 and   he is not entitled to another review by the ADRB (paragraph 4-1b).  Therefore, these paragraphs do not apply to him.    

4.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

5.  His record of service included two NJP actions and serious drug offenses for which court-martial charges were preferred.  As a result, his record of service was not satisfactory.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  The applicant's record of service is insufficiently meritorious to warrant an upgrade of his undesirable discharge to a general 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)                                         AR20110005829



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ABCMR Record of Proceedings (cont)                                         AR20110005829



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