BOARD DATE:	  31 July 2014

		DOCKET NUMBER:  AR20130020388 


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 a "change to current discharge from undesirable to general under medical."

2.  The applicant states he was addicted to drugs for several years after his discharge caused by drug use that started while in the service.

3.  The applicant provides no additional evidence in support of his 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 18 October 1971, he enlisted in the Regular Army for 4 years.  On 
15 August 1972, he was assigned to the 7th Radio Research Field Station at Ramasun, Thailand.
3.  A DA Form 2985-2 (Alcohol and Drug Abuse Control Program Intake Record), dated 22 February 1973, indicates the applicant had ingested barbiturates several times a week with the last time being 2-7 days ago.  The disposition was to continue him on active duty and use other rehabilitation methods.

4.  A DA Form 3647 (Clinical Record Cover Sheet), dated 26 June 1973, indicates he was admitted to the U.S. Army Hospital in Thailand on 26 June 1973 for heroin abuse.  Disposition was to transfer him to Kimbrough Army Hospital at Fort Meade, MD.

5.  An unsigned DA Form 3349, dated 28 June 1973, indicated he was placed on profile and was to be assigned where rehabilitation facilities were available.

6.  On 28 July 1973, he was assigned to Headquarters and Headquarters Company, 76th Engineer Battalion at Fort Meade, MD.

7.  On 26 November 1973, he was discharged to immediately reenlist.  He completed 2 years, 1 month, and 9 days of active service that was characterized as honorable.  There is no record available of a medical examination that would have been performed prior to his discharge and immediate reenlistment.

8.  On 27 November 1973, he immediately reenlisted for 5 years.  

9.  He accepted nonjudicial punishment (NJP) on:

* 2 January 1974 for improperly backing a vehicle without a guide, going from his guard with the intent to abandon the same, and illegally transporting a weapon (M16)
* 28 August 1974, for having in his possession an illegal substance, to wit: marijuana 
* 28 April 1975 for being absent without leave (AWOL) from on or about 
7 February to on or about 16 April 1975

10.  On 12 May 1975, he went AWOL again.  On 4 April 1976, he was apprehended by civil authorities and returned to military control.

11.  On 7 April 1976, court-martial charges were preferred against the applicant for being AWOL from on or about 12 May 1975 to 4 April 1976.

12.  On 14 April 1976, he consulted with counsel and voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense for which he was charged
* making the request of his own free will
* advised he may be furnished an Undesirable Discharge Certificate
* advised he could submit statements in his own behalf (he indicated he would submit a statement)

13.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an under other than other honorable conditions discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

14.  In his statement, the applicant felt it would be to the benefit of the Army to release him.  He enlisted after he received his induction notice.  After completing a tour overseas he was assigned to Fort Meade, MD, 8 miles from his home.  He was able to go home every night and be with his family and friends.  This is why he started going AWOL because he started to get sick of the Army.  His family and friends were going on trips and doing what they wanted to do while he had to do what the Army wanted him to do.  He states in January 1975 he was going with a girlfriend and he received orders for Germany.  He went AWOL so he wouldn't have to go and 2 months later he turned himself in.  After being AWOL and having the freedom that he so desired he went AWOL again because he wanted no more to do with the Army.  He just wanted out.  He realized he could receive an undesirable discharge but he was willing to face up to what hardships he might have in civilian life because of an undesirable discharge.

15.  On 22 April 1976, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an undesirable discharge.

16.  A Standard Form 88 (Report of Medical Examination), dated 13 April 1976, documents his separation medical examination.  There are no indications on this examination concerning drug use or drug addiction.  The examiner found the applicant qualified for duty and/or separation.

17.  On 27 April 1976, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 due to conduct triable by court-martial.  He had completed 3 years, 5 months, and 9 days of active service that was characterized as under other than honorable conditions.  He had 397 days of lost time.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Under the laws governing the Army PDES, Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement or severance pay benefits:

	a.  The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

	b.  The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

19.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Although an honorable or general discharge was authorized, an Undesirable Discharge Certificate was normally furnished 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive a medical discharge due to his drug addiction being caused by his drug use while in the service.  He contends he was addicted to drugs for several years after discharge due to the drugs he used while in the service.  However, he provides no substantive evidence in support of his contention.
2.  He was treated for heroin abuse during his first enlistment.  However, soon after he was immediately reenlisted.  He received an honorable discharge for his first period of service.  Due to the non-availability of a physical examination for separation at the time, it must be presumed that he was found qualified for separation/reenlistment.

3.  After his reenlistment one 27 November 1973, there were no indications of drug abuse other than the NJP he received on 28 August 1974 for possession of marijuana.  

4.  In his statement, submitted with his request for discharge, the applicant essentially stated he wanted out of the Army so he could regain his freedom to do whatever he desired.  He made no reference to drugs, drug use, or drug addiction in his statement.

5.  The fact that he was apprehended by civilian authorities after 397 days of being AWOL raises doubt as to his intent to return to military jurisdiction of his own volition.  Therefore, his service is considered unsatisfactory and there is no basis upon which to upgrade his undesirable discharge to a general discharge.

6.  In order to be processed through the PDES a disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.  There is no evidence the applicant had a medical condition that was incurred while entitled to basic pay or aggravated in the performance of active duty or inactive duty for training.  

7.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

8.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The issuance of an undesirable discharge was normally considered appropriate when a member was separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  

9.  In view of the above, there is an insufficient basis upon which to upgrade his discharge to a general discharge or to correct his record to show he was discharged for medical reasons.

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)                                         AR20130020388



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ABCMR Record of Proceedings (cont)                                         AR20130020388



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