IN THE CASE OF:	  

		BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130011876 


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, in effect, upgrade of his undesirable discharge to a general discharge or medical discharge and removal of nonjudicial punishment (NJP) proceedings under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), from his record.  He also requests a personal appearance before the Board.

2.  The applicant states he enlisted in the Army because a judge told him that unless he joined the military he would be sent to jail for misconduct related to substance abuse.  While he felt that he joined the Army under duress, he began enjoying Army life.  He states that after his arrival in Germany he was not getting paid because the pay clerk did not like that he associated with black Soldiers during his off-duty hours.  He began carrying a knife for his protection.  On 6 November 1973, on his day off, he traveled to Wurzburg to go to the main finance office to correct his pay.  Upon his return to Peden Barracks he was subjected to multiple searches within the same evening and night.  Shortly, thereafter he received NJP under the provisions of Article 15, UCMJ.  He was fired from the special weapons unit.  He was extremely upset and disappointed and turned to alcohol.  He also tested positive for heroin.  The Army sent him to the drug rehabilitation program and the doctor discovered that he had an alcohol addiction.  The doctor recommended to the chain of command that he be discharged for medical reasons.  His chain of command began processing his medical discharge and he was advised that he was recommended for a general discharge under honorable conditions.  He states that while he was waiting to be discharged, he was told each time that his port call was incorrect and he had to wait longer.
3.  On 10 August 1974, he was searched again and this time an unknown amount of drugs was scraped from the bottom of his jacket pocket.  His defense counsel advised him that he was facing very serious charges but he could make them go away if he signed a "Chapter 10."  He states that it was explained to him that he would face substantial prejudice for having an undesirable discharge, but he was never told that it would last forever.  After he left the Army he plunged into his addiction and almost committed suicide.  From 1983 to 1987 he attended Alcoholics Anonymous (AA) meetings and turned to God.  He began working as an electrician and since 2009 he has been serving in Afghanistan alongside Soldiers.  He has been married for over 20 years and is taking care of his disabled son.  He believes that a medical discharge would more accurately reflect his service.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the Board should correct the decision made by the military with regard to the undesirable discharge because the decision was legally incorrect, was unjust, and resulted in incorrect military records.

	a.  Counsel states while he was stationed in Germany the applicant was referred to rehabilitative treatment and he did not receive a full opportunity to overcome his addiction in the rehabilitative treatment.  While waiting to be discharged, he was charged with selling ration cards and attempting to sell drugs.  He then submitted his request for administrative separation for the good of the service.

	b.  Counsel states the NJP was legally insufficient because it makes references to a non-punitive regulation and a regulation which appears to be an incorrect reference.  He states:

* Army Regulation 600-50 (Standards of Conduct for Department of the Army Personnel) failed to provide sufficient notice and clarity that not complying with it would result in a punishment under the UCMJ
* it was determined there was no Army Regulation 190-6 (Obtaining Information from Financial Institutions) in 1972
* regulatory policy with regard to the applicant's NJP which led to his undesirable discharge lacked notice and clarity, and as such, the underlying punishment should be removed from his military records
* violation of the 5th Amendment of the U.S. Constitution due to failing to meet due notice and clarity requirements that certain acts violating standards of conduct would constitute violation of the UCMJ
* Army Regulation 600-50 was not punitive at the time and resulted in an injustice to the applicant because his rank was reduced and he was subsequently discharged from the military with an undesirable discharge
* same applies to U.S. Army Europe Regulation 632-10 (Regulated Activities of Members of the U.S. Forces, Department of Defense Components, and Dependents) in that it was not a punitive regulation
* page 4 of the DA Form 2627 (Record of Proceedings under Article 15 (UCMJ)) directs that commanders need to line out and initial in 1 (organizations through which the Article 15 is routed) which was not done
 
	c.  He states the applicant was illegally searched following the Army procedures which violated the Fourth Amendment.  He states:

* search was based on probable cause seizure without explaining the factual basis
* in Committee for GI Rights v. Callaway, the court stated that warrantless drug inspections without showing of probable cause were not justified by military necessity
* the records show by clear and convincing evidence that the searches were conducted in accordance with the Army policies at the time in violation of the U.S. Constitution because they were used for the purpose of administering adverse action under the UCMJ

	d.  Counsel continues by stating that in this case, the applicant received punishment under Article 15, UCMJ and had charges preferred against him on a DD Form 458 relating to controlled substances, after being illegally searched.  Instead of being directed for complete rehabilitation, the applicant was punished with NJP, ordered to continue to serve with minimal treatment, told to await a medical separation only to be charged again shortly thereafter, and ultimately discharged with an "undesirable discharge."  Instead of separating him based on his medical condition, the unit waited until it could charge him with additional misconduct.  He states the applicant was never given the opportunity to rehabilitate himself in the Community Drug and Alcohol Assistance
Center (CDAAC) program; rather he was quickly discharged from CDAAC and processed for medical separation.  While being out-processed he was charged with conduct consistent with his addiction.  Considering his service achievements prior to his misconduct and post-service achievements, he had the potential to rehabilitate himself and would most likely have been a rehabilitative success.

	e.  He states the Board should grant relief because the applicant has shown "cogent and clearly convincing evidence" that the military did not follow its own laws and regulation.
	f.  Additionally, the Air Force BCMR upgraded an applicant's discharge from "undesirable" to general under honorable conditions based on the passage of time.  The Air Force Board reasoned that the passage of time (37 years since discharge) and the applicant's post-service record warranted the upgrade.

2.  In summary, his counsel states the applicant has been discharged for over 39 years, has experienced substantial prejudice based on his discharge, and has been restricted to manual labor.  Considering the procedural and substantive errors in his military records, his post-service combat zone deployments, his youth at the time, and the equity aspect of substantial and not eternal prejudice, the applicant respectfully requests upgrade of his discharge.

3.  Counsel provides a list of documents submitted in support of this 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.  On 9 February 1973, the applicant enlisted in the Regular Army for 4 years.  He completed training and was awarded military occupational specialty 13A (Field Artillery Basic).  The highest rank he held was private two/pay grade E-2.

3.  He accepted NJP under the provisions of Article 15, UCMJ on 16 November 1973 for:

	a.  violating paragraph 4-2a(7)(a) of Army Regulation 600-50, Change 2, dated 19 April 1973, by having in his possession one gram more or less of hashish; and

	b.  violating Army Regulation 190-6, dated 11 January 1972, by having in his possession one knife with a blade of three and one-half inches more or less in length.

4.  His punishment was reduction in grade to private/E-1 and correctional custody for 30 days (correctional custody was suspended until 15 February 1974).  He did not appeal the punishment.

5.  A Standard Form 88 (Report of Medical Examination), dated 13 May 1974, completed in conjunction with his chapter 10 separation proceedings, shows in item 73 (Notes) that the applicant was a drug abuser and was drug dependent.
  
6.  On 10 August 1974, charges were preferred against the applicant for:

* illegally selling two U.S. Army Europe ration cards
* attempting to sell heroin
* wrongfully having in his possession .1 gram more or less of marijuana (hashish)

7.  On 21 August 1974, his battalion commander recommended the applicant be tried by general court-martial.

8.  On 30 August 1974, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, of the possible effects of an undesirable discharge, and the rights available to him.  

9.  After consulting with counsel, the applicant voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

	a.  He acknowledged he had not been subjected to coercion with respect to his request for discharge.  He acknowledged that he was guilty of the charge(s) against him or of lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.

   b.  He further acknowledged he understood that if his discharge request were accepted, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State law.

	c.  It is unknown whether he submitted a statement on his own behalf.  He waived his rights in conjunction with this consultation.

10.  A legal review, dated 17 September 1974, shows there was no legal objection to approving the applicant's proposed administrative discharge.  It stated the discharge was based in whole or in part on illegal possession of drugs based on probable cause seizure and that the administrative discharge proceeding was not based on evidence of drugs obtained from or as a result of a "drug inspection."  It further stated the discharge was in accordance with the 8 February 1974 order of the United States District Judge in the Committee for GI Rights, et al, v. Callaway, et al, Civil Action No. 835-73.

11.  On 17 September 1974, his chain of command recommended he be given an undesirable discharge.

12.  The separation authority approved the applicant’s request for discharge and directed he be given an Undesirable Discharge Certificate.

13.  On 30 September 1974, he was discharged for the good of the service under the provisions of chapter 10, Army Regulation 635-200, with his service characterized as under other than honorable conditions.  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 7 months, and 22 days of net active service.

14.  A review of his record failed to reveal any medical separation processing documents.

15.  On 22 August 1975, the ADRB denied the applicant's request to upgrade his undesirable discharge to a general discharge.  A brief he provided in connection with his application to the ADRB shows he stated that he failed the drug program in January 1974.

16.  On 20 March 1984, the ADRB denied his request to upgrade his undesirable discharge to a general discharge.

17.  His wife indicates in a personal statement that the applicant is a very sincere person who has provided assistance to many men and women and has served 4 years overseas in Afghanistan.  She states as she has learned the details of the applicant's service she deeply believes he would have recovered from his alcoholism if he had been given the opportunity to do so while in the military.

18.  He provides multiple letters of recommendation and personal reference stating he is an honest person of high moral character and professional integrity, an outstanding employee who performs with a tireless and unselfish effort, and is an exemplary contributor to the community.  He is also described as a mentor and friend to others during their times of hopelessness and despair.
19.  He provides multiple military letters of appreciation and a Certificate of Achievement recognizing him for his outstanding support in Afghanistan.  He also provides numerous training certificates of completion and other evidence of completion of various education courses or programs.

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 to an individual who was discharged for the good of the service.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

21.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

22.  Army in Europe Regulation 190-6 (Registration and Control of Privately Owned Firearms and Other Weapons in Germany (AE 190-6)) prescribes controls for possessing, using, and carrying privately owned firearms, destructive devices, other weapons, and explosives.  The current version states knives with blades longer than 3 inches will not be carried except when the knife is Government-issued, deemed by the commander as necessary for the performance of an individual’s duty, and authorized to be carried while performing the duty or while an individual is hunting, fishing, camping, or engaged in other related sporting events.


DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has requested a personal appearance before the Board, there is sufficient evidence available for a fair and impartial consideration of his case without such an appearance.

2.  His counsel's contentions that the discharge decision was legally incorrect, was unjust, the result of an illegal search, was otherwise legally insufficient, and that the DA Form 2627 contained two errors were carefully considered.  However, the available evidence does not support the applicant's request.

3.  The fact that the applicant violated a lawful regulation was the basis for his NJP, not whether the cited regulation was punitive in nature.  Given that the current AE 190-6 covers the possession of weapons such as the knife for which he received NJP, it is reasonable to presume it did at the time also.  The erroneous reference to the regulation and the fact that organizations through which the Article 15 was to be routed were not lined through and initialed appear to have been harmless administrative errors.

4.  Additionally, there is no evidence to support the applicant's contentions that the military intentionally delayed his medical discharge processing until he could be charged with a serious offense warranting a punitive discharge. 

5.  A legal review of the proceedings shows there was no legal objection to approving of the applicant's proposed administrative discharge.  It further showed that the discharge was based in whole or in part on illegal possession of drugs based on probable cause seizure and that the administrative discharge proceeding was not based on evidence of drugs obtained from or as a result of a "drug inspection."  It further stated the discharge was in accordance with the 8 February 1974 order of the United States District Judge in the Committee for GI Rights, et al, v. Callaway, et al.  Therefore, it appears the applicant's rights were not violated in this case.

6.  While the applicant's post-service conduct and achievements are recognized these factors are not sufficiently meritorious as to warrant the relief requested.  Additionally, there is an insufficient evidentiary basis to support the contention that he would most likely have been a rehabilitative success, particularly given that he failed the drug rehabilitation program.

7.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.
8.  In addition to receiving NJP for possessing one gram more or less of hashish and a knife with a blade of 3 1/2 inches more or less in length, he was charged with illegally selling ration cards, attempting to sell heroin, and wrongfully having in his possession .1 gram more or less of marijuana (hashish), offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.

9.  This serious misconduct warranted his discharge under other than honorable conditions.  The evidence shows the applicant was properly and equitably discharged in accordance with the applicable regulations, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  

10.  In view of the foregoing, there is no basis for upgrading his discharge to a general discharge, changing it to a medical discharge, or for granting the requested relief with regards to the handling of material related to his 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)                                         AR20130011876



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ABCMR Record of Proceedings (cont)                                         AR20130011876



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