IN THE CASE OF: 

		BOARD DATE:	    8 July 2014

		DOCKET NUMBER:  AR20130019319 


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 an upgrade of his characterization of service from under other than honorable conditions to honorable.

2.  The applicant states that before he went to Vietnam he only had a traffic ticket.  He had never been in trouble during his military service.  Since his release from active duty he has spent his life battling drug addiction.  He believes he was coerced and intimidated into signing documents stating he sold drugs.  

	a.  He was assigned to 2nd Battalion, 501st Infantry Regiment, 101st Airborne Division near Phu Bai close to North Vietnam where he served in military occupational specialty (MOS) 64A (Light Vehicle Driver).  His home landing zone (LZ) was LZ Sally.  In 1968 LZ Sally was full of illegal drugs.  Opium-soaked joints were 10 for $3.00 and everyone indulged.  

	b.  One day he was closing the hatch on a 1,200 gallon tanker truck when he drew fire.  He fell off the tank and tore the cartilage in his right knee.  He was medically evacuated to the hospital in the city of Hu? and then subsequently to Camp Zama, Tokyo, Japan where he had surgery on his knee.  He was given pain pills like candy and if he wanted a shot of Demerol all he had to do was ask. 

	c.  When he left Japan he was shipped to a hospital at Fort Ord, CA where he continued to receive pain medication.  After about a month he was released from the hospital and assigned to the U.S Army Combat Developments and Experimentation Command (CDEC), Fort Ord, CA; he was only a few months from his release date.  
	d.  He discovered that he was dependant on narcotics while assigned to the CDEC.  There were a lot of returning Soldiers who, like himself, had used drugs in Vietnam, and a lot of drugs were being sent back as a result.  

	e.  He soon met another drug user assigned to CDEC and they shared their drugs and connections.  He was not aware that his friend had recently been in trouble with the authorities and agreed to make a drug purchase.  His friend told him he owed someone money and asked him to act like he had drugs for sale and that afterward they could go get high.  His friend took him to meet this person he mentioned and he could see right away that the situation was a set-up. He was arrested even though he did not have any drugs in his possession and taken to the company area where his room and belongings were searched.  He was taken to the stockade even though the authorities did not find any drugs.  

	f.  He was in the stockade for almost a month when a first lieutenant (1LT) arrived and informed the applicant he was from the Judge Advocate General’s (JAG) office.  The first thing the 1LT said was that he had been appointed to represent the applicant.  The second thing the 1LT said was that the applicant was going to go to Fort Leavenworth prison for 24 years of hard labor.  The 1LT also told the applicant the Soldier who set up the arrest was going to testify at a general court-martial that the applicant sold him drugs.  However, if he signed paperwork admitting he sold drugs he would be released from the stockade the next day, receive a "206 discharge… general under criminal conditions," and would be able to have his discharge upgraded to honorable in 10 years.  He signed the paperwork and the next day he was released from the stockade to process out of the Army.  

3.  The applicant provides a self-authored statement, dated 20 October 2013.

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 was inducted into the Army of the United States on 28 January 1969.  He held MOS 64A.

3.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to:

* Vietnam from 17 June to 6 July 1969 and he was assigned to Headquarters and Headquarters Company, 2nd Battalion, 501st Infantry Regiment from 6 to 20 July 1969
* The 249th General Hospital, Japan as a patient from 21 July 1969 to on or around 3 August 1969
* Fort Ord, CA from on or around 4 August 1969 to 30 September 1970 at the:

* military hospital as a patient from 4 August to 30 September 1969
* U.S. Army CDEC, Fort Ord, CA from 1 October to 27 October 1969 
* Transportation Company, General Support Group from 28 October 1969 to 30 September 1970

4.  His record contains a DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 5 September 1969, showing he accepted/received non-judicial punishment (NJP) for being absent without leave (AWOL) from on or about 27 August to 4 September 1969.

5.  His record contains a Federal Bureau of Investigation (FBI) report, dated 
13 February 1970, showing:

* On 16 May 1967, he was arrested by civil authorities and charged with assault and battery and disturbing the peace  
* On 2 February 1970, he was arrested by civil authorities and charged with the sale and possession of heroin and possession of a concealed weapon
* On 3 February 1970, he was arrested by civil authorities and charged with possession of heroin and marijuana

6.  His DA Form 20 shows he was in pretrial confinement at Fort Ord, CA from 
26 March to 17 June 1970.  He was transferred to the Monterey, CA county jail because he had been convicted of possession of drugs by civil authorities and sentenced to 6 month in jail on 18 June 1970.





7.  His record contains a DD Form 458 (Charge Sheet) that shows military authorities charged him with:

* wrongfully possessing narcotics paraphernalia which included a can containing a hypodermic needle, an eyedropper, a metal measuring spoon, 13 balloons, a red plastic cup, one cotton ball, and six clear capsules
* wrongfully having in his possession .55 grams of heroin
* wrongfully selling a fellow Soldier .55 grams of heroin

8.  His record contains a court order issued by the Superior Court of the State of CA, (Monterey, CA), dated 18 June 1970.  This document shows the court determined he was convicted of possession of drugs other than marijuana, which was a violation of the health and safety code and a felony.

9.  His record contains a Headquarters Fort Ord Form 29 (Result of Civil Court Conviction) dated 24 June 1970 which shows, on 18 June 1970, he appeared in court with an attorney and pled guilty to possession of drugs other than marijuana, which violated the California health and safety code, a felony.  He was convicted of the felony offense and confined/committed to a medical facility for a diagnostic study for a period not to exceed 90 days.  During the time of the diagnostic study his criminal proceedings were suspended. 

10.  On 30 July 1970, he was notified of his commander's intent to initiate separation actions against him in accordance with Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) for conviction by a civil court. His commander also informed him that he was being notified of the following rights in accordance with Army Regulation 653-206, paragraph 6a (Individuals confined by civil authorities).  

	a.  Paragraph 6a of Army Regulation 635-206 states an individual unable to appear before a board of officers by reason of confinement by civil authorities will be advised by registered mail of the proposed discharge action, the type of discharge certificates that may be issued, and the fact that action has been suspended to give him the opportunity to exercise the following rights:

* to request appointment of military counsel to represent him and in the individual's absence present his case before a board of officers 
* to waive the foregoing rights by declining to reply to the letter of notification within 30 days
* to withdraw his waiver of rights any time prior to the date the discharge authority directed or approved his discharge and request that his case be presented before a board of officers
	b.  The applicant signed and dated the document on 7 August 1970.

11.  On 6 August 1970, the applicant's company commander recommended the applicant be discharged under the provisions of Army Regulation 635-206 for a civil conviction with an undesirable discharge.  

12.  On 19 August 1970, his battalion commander recommended approval of the applicant's discharge and the issuance of an Undesirable Discharge Certificate.

13.  On 31 August 1970, the applicant consulted with counsel and he was advised of the basis for the contemplated separation for a civil conviction, in accordance with Army Regulation 635-206, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers and appearance before a board of officers.  He elected not to submit a statement on his own behalf.  He further acknowledged he understood that:

	a.  He could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him. 

	b.  As a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life.

14.  On 8 September 1970, he underwent a psychiatric evaluation for the purpose of separation.  His mental examination revealed no psychiatric disease.  The applicant was capable of distinguishing right from wrong and adhering to the right.  He was deemed responsible for his own actions and to be possessed of the mental and emotional capacity to understand and participate in board or other legal proceedings.  He was psychiatrically cleared for separation.

15.  On 2 September 1970, his regimental commander recommended approval of the discharge action and the issuance of an Undesirable Discharge Certificate.

16.  On 28 September 1970, the separation authority approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.

17.  On 30 September 1970, he was discharged accordingly.  His service was characterized as under other than honorable conditions.  His DD Form 214 (Armed Forces Report of Transfer or Discharge) shows he was credited with completing 1 year, 2 months, and 17 days of net active service, of which 1 month and 28 days was credited as foreign service, and he had 166 days of lost time.  

18.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and AWOL or desertion).  The regulation stated 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 included confinement of 1 year or more, was to be considered for elimination.  When such separation was warranted an undesirable, under other than honorable conditions discharge was considered appropriate.

19.  Army Regulation 635-200 (Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:

	a.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

	b.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he was discharged in accordance with Army Regulation 635-206 for misconduct-conviction by civil authorities.  

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

3.  He received NJP under the provisions of Article 15 of the UCMJ for being AWOL and he was convicted and sentenced by civil authorities for possession drugs, which was a felony conviction.  As such, the quality of his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is an insufficient evidentiary basis for granting an honorable or a general discharge 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)                                         AR20130019319



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ABCMR Record of Proceedings (cont)                                         AR20130019319



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