IN THE CASE OF:	  

		BOARD DATE:  25 July 2013

		DOCKET NUMBER:  AR20130000645 


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 upgrade of his undesirable discharge (UD).

2.  The applicant states:

	a.  he developed a drug problem in Vietnam which compounded a preexisting mental defect that was the result of physical and sexual abuse as a child;

	b.  despite his drug abuse his records show his work conduct and efficiency ratings were good;

	c.  studies show that it is the norm for physically and sexually abused children to abuse drugs;  

	d.  he has been diagnosed as suffering from both major depression and an attention deficit disorder;

	e.  the events that led to his drug abuse were not entirely his fault; and 

	f.  he admits to using heroin and other drugs in Vietnam while on duty and he started using LSD after a period of hospitalization for drug rehabilitation. 

3.  The applicant provides copies of a self-authored statement about his service, five letters of support (dating from 1974), a 2010 letter of support, and a 2 January 1979 pardon from the Governor of Oklahoma.

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, at age 17 with parental consent, on 20 January 1970. He completed training and was awarded the military occupational specialty 71B (Clerk Typist).

3.  He served in Vietnam from 5 February 1971 through 17 January 1972.  

4.  His conduct and efficiency ratings are shown to have been exclusively "excellent" until 27 May 1972 when he was arrested off post in a joint military and Comanche County OK Sheriffs sting operation on two counts of "delivering" LSD. 

5.  He remained in county confinement until 2 October 1972 when a civil court found him guilty of the drug charge.  He was sentenced him to five years confinement in the state penitentiary.  The applicant did not appeal his sentence. The available records show his sentence was to run concurrently with another sentence, the specifics of which are not of record. 

6.  On 3 November 1972, his unit initiated separation action under Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct), paragraph 33 for misconduct by conviction by civilian authority for commission of a serious offense.  

7.  The applicant acknowledged the separation action, waived his right to a personal appearance and to submit a personal statement in his own behalf but requested his case be reviewed by a board of officers and he be represented by military counsel.

8.  On 21 March 1973, a board of officers was convened.  The board determined that due the applicant's civilian conviction he was unfit for retention.  The board recommended he be discharged and issued an undesirable discharge. 
9.  The discharge authority approved the discharge and directed the applicant be reduced to the lowest enlisted grade and discharged with a UD.

10.  The applicant was discharged on 19 April 1973 with a UD.  He had 2 years, 4 months, and 6 days of creditable service with 328 days of lost time. 

11.  In 1977, the applicant applied for consideration under the Special Discharge Review Program (SDRP); however, it was determined he did not meet the criteria for an SDRP review.

12.  On 2 January 1979, the Governor of Oklahoma granted the applicant a state pardon. 

13.  On 27 May 1982, the Army Discharge Review Board denied the applicant's request for an upgrade.

14.  The five of the letters of support provided by the applicant date from 1974 and appear to have been originally provide in support of an application to the Department of Veterans Affairs (VA) for medical benefits.  These letters were submitted and reviewed in both the SDRP and the 1982 ADRB reviews.

15.  The sixth letter, dated 2010, describes the applicant as a good man, good father and family man, and an upstanding member of the community.

16.  Army Regulation 635-206, then in effect, provided that an enlisted member who was convicted by a civilian court of an offense for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) included confinement of 1 year or more was to be considered for elimination.  When such separation was warranted an undesirable discharge was considered appropriate.

17.  Army Regulation 635-200 sets policies, standards, and procedures for enlisted separations.  It provides the following:

	a.  An honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service has met the standards of acceptable conduct and performance of duty.

	b.  A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.



DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offense that led to the discharge.

2.  While the applicant’s candid admission of a drug problem and mental/ emotional from childhood abuse are noted, in the absence of evidence that he was unable to tell right from wrong or to adhere to the right, this does not demonstrate an error or inequity in the decision.

3.  Five of the letters attesting to the applicant’s good character are noted, but because they are almost 29 years old they have little bearing on the applicant's current conduct or behavior.  The sixth letter is insufficient as a sole basis for relief because it does not outweigh the misconduct that led to the applicant’s separation. 

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)                                         AR20130000645





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ABCMR Record of Proceedings (cont)                                         AR20130000645



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