IN THE CASE OF: 

		BOARD DATE:	    20 February 2014

		DOCKET NUMBER:  AR20130010942 


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 bad conduct discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states:

* he had a drinking and drug problem in the early 1970's
* his drug problem developed while he was serving in Germany
* his record was clean until he was arrested
* his conduct was clear until he overdosed on heroin 
* he was never offered any kind of treatment for his alcohol and drug problem
* he was scared and wanted to stay in the Army but he had no choice in the matter
* he served honorably regardless of any alcohol and drug problem

3.  The applicant provides no documentary evidence in support of his request.

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 on 6 December 1974.

3.  His DA Form 2-1 (Personnel Qualification Record) shows he served in Germany during the period 25 April 1975 through 12 May 1976.

4.  A Standard Form 600 (Chronological Record of Medical Care), dated 19 December 1975, shows the applicant was transported by ambulance to the Emergency Room at the 97th General Hospital, Germany, after being caught at a train station with heroin and equipment needed for the injection of heroin.

5.  A Standard Form 600, dated 9 January 1976, shows the applicant was referred to drug and alcohol rehabilitation follow-up.

6.  A DA Form 3349 (Medical Condition – Physical Profile Record), dated 9 January 1976, shows the applicant was in active rehabilitation for a 90-day period.

7.  On 9 March 1976, the applicant was declared a rehabilitation success as directed by his unit commander.

8.  A Standard Form 600, dated 29 March 1976, shows applicant was taken to the emergency room by military ambulance due to a suspected overdose.

9.  On 2 April 1976, the applicant was returned to the 97th General Hospital for detoxification.

10.  A Standard Form 513 (Consultation Sheet), dated 2 April 1976, shows the applicant reported:

* his use of 1 gram of heroin in 2 or 3 days for 8 months and that he had been in drug and alcohol treatment for 3 months
* prior to service he had a depressant addiction with resulted in his hospitalization for 6 weeks
* he had discontinued his heroin use on two occasions for 1 1/2 weeks
* he experienced mild withdrawal symptoms; however, he made it through withdrawal without the need for medical assistance

11.  The Standard Form 513, dated 2 April 1976, also shows the evaluating doctor:

* recommended that the applicant be returned to his unit and kept under observation and restricted to the unit area
* determined hospitalization was not appropriate at the time based on the applicant's previous withdrawal history
* provided consultation to the applicant's executive officer

12.  A Standard Form 600, dated 5 April 1976, shows the applicant was determined to be a rehabilitation failure as directed by the unit commander.

13.  General Court-Martial Order Number 42, issued by Headquarters, 8th Infantry Division, dated 9 June 1976, shows the applicant pled and was found guilty of wrongfully and unlawfully possessing:

* 3 hypodermic syringes and 2 hypodermic needles on or about 19 December 1975
* 1 hypodermic syringe and 1 hypodermic needle on or about 28 February 1976
* 1.18 grams, more or less, of heroin on or about 19 December 1975

14.  He was sentenced to reduction in rank/grade from private first class/E-3 to private/E-1, forfeiture of all pay and allowances, 2 years confinement to hard labor, and a dishonorable discharge.

15.  General Court-Martial Order Number 682, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, KS, dated 29 July 1977, shows:

* he was sentenced to a bad conduct discharge
* the portion of the adjudged confinement at hard labor in excess of 12 months and forfeitures in excess of $225 pay per month for 12 months was suspended until 11 August 1977
* the findings and sentence were affirmed

16.  On 21 December 1977, the applicant was discharged in accordance with his affirmed sentence under the provisions of Army Regulation 635-200, paragraph 11-2.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 3 months, and 1 day of creditable active military service with 275 days of lost time.

17.  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.

18.  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 evidence of record shows the applicant suffered from a drug abuse problem.  Contrary to his contention that he was never offered any kind of treatment for his alcohol and drug problem, his records show that he was provided the opportunity to overcome his problem through enrollment in a rehabilitation program.  However, his suspected overdose and heroin detoxification showed poor rehabilitation and failure to make progress.  Therefore, he was declared a rehabilitation failure.

2.  He pled guilty to and was convicted of wrongfully and unlawfully possessing hypodermic syringes and needles and heroin.  His conviction and sentence by general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  He was not given his bad conduct discharge until after his conviction and sentence had been reviewed and affirmed by the U.S. Army Court of Military Review.

3.  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.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20130010942



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ABCMR Record of Proceedings (cont)                                         AR20130010942



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