BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20130022133 


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 reconsideration of his previous request for an upgrade of his undesirable discharge (UD).  

2.  He states, in effect, the punishment he received as a result of court-martial was unjust.  He is a good citizen who served in the best interest of the military and he now needs help accessing medical care from the Department of Veterans Affairs (VA).  He states:

	a.  After completing initial entry training and being advanced to private first class (PFC)/E-3, he was assigned to a unit in Germany as a mechanic in the company motor pool and was later transferred to a supply warehouse as a stock clerk.  This was the downfall of his career.  When he arrived at the unit, he had at most a light cigarette habit.  When he arrived at the supply unit, 75 percent of his comrades were heroin addicts and the other 25 percent were alcoholics.  In that environment, he was introduced to drug consumption, which led to the destruction of a respectable young man.  

	b.  In the interest of self-improvement, he began studies at the post education center.  Before achieving anything, he was removed from the "study roster," and discouraging things kept piling up.  

	c.  After arriving in Germany, he learned that separation from his wife had caused her to develop a nervous condition.  He requested a hardship discharge, which was denied.  He then brought his family to Germany.  They arrived in March 1973 and departed in April 1974.  
	d.  Through drug trafficking he found the means to finance the relocation of his family to Germany.  By the time his family was with him, he had a drug habit, which became worse as time went by.  This turned a respectable young man into a helpless heroin addict.  

	e.  Under those conditions, he was stripped of rank, privileges, and opportunities, and he was treated with no consideration for the state he was in.  In that condition, he was tried by court-martial, after which he received his port call.  He was concerned about suffering withdrawal, so he supplied himself with Mandrax (a sedative also known by the brand name Quaalude) purchased at a local pharmacy.  He stashed the pills, and at his customs inspection, the agent found a switchblade knife in his bag, which led to a more thorough inspection and the discovery of the pills.  His port call was cancelled and he was sent back to his unit.  He was then sent to a hospital for detoxification and later medically evacuated to the United States.

	f.  If he had been sent to the hospital for detoxification and treatment instead of being tried by court-martial, a Soldier would not have been destroyed and a military career would have been saved.  

3.  He provides his DD Form 214 (Report of Separation from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120015264, on 28 February 2013.

2.  The applicant has provided new argument that warrants reconsideration of his request.

3.  On 27 January 1972, he enlisted in the Regular Army for a period of 3 years.  After completing initial entry training, he was awarded military occupational specialty 63C (Track Vehicle Mechanic).  Effective 25 August 1972, he was advanced to specialist four (SP4)/E-4, which was the highest grade he held.

4.  On 24 September 1972, he was assigned to the 124th Heavy Equipment Maintenance Company in Germany with principal duty as a track vehicle mechanic.  On 25 April 1973, he was reassigned to principal duty as a stock control accounting specialist, and he later served as an engineer parts specialist.  

5.  He was counseled on numerous occasions in January and February 1974 for:
* not reporting for duty
* being late for work
* frequently being absent from morning formation
* reporting late for formation in mixed uniform
* being disenrolled from an education program because of his lateness for work
* not coming to work after calling in to say he would be late
* being absent from his place of duty for several hours without notifying his supervisors

6.  On 25 February 1974, he receive nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 12 February 1974.  His punishment was to be reduced to PFC/E-3 and to forfeit $75.00.  So much of the punishment as pertained to reduction to PFC/E-3 was suspended for a 90-day period, at which time, unless sooner vacated, the reduction was to be remitted without further action.  The applicant did not appeal the punishment.

7.  On 15, 18, and 21 March 1974, he was counseled for being late for morning work formation.  

8.  On 28 March 1974, the suspension of the punishment of reduction to PFC/E-3 was vacated and ordered to be duly executed.  He was reduced to PFC/E-3 effective 28 March 1974.  

9.  On 11 April 1974, he received NJP for violating lawful general regulations by having in his possession on 18 March 1974 a habit-forming narcotic drug, to wit:  heroin; a straight razor; and a hypodermic syringe.  His punishment was reduction to private two (PV2)/E-2 and 14 days of extra duty.  He did not appeal the punishment.  

10.  On 16 April 1974, he underwent a mental status evaluation.  The examining officer found no significant mental illness and found him to be mentally responsible, able to distinguish right from wrong, able to adhere to the right, to have the mental capacity to understand and participate in board proceedings, and to meet retention standards.  

11.  On 24 April 1974, his company commander notified him of the intent to initiate action to effect his discharge for unfitness under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5a(1), by reason of frequent incidents of a discreditable nature with civil or military authorities.  He was advised of his rights.  
12.  On 24 April 1974, he consulted with counsel who advised him of the basis for his contemplated separation and its effects and the rights available to him.  

13.  After consulting with counsel, he requested consideration of his case by a board of officers and personal appearance before a board of officers.  He waived psychiatric examination in connection with the action.  He acknowledged he could receive a UD because he was being recommended for separation for unfitness for reasons other than exempt drug abuse.  He acknowledged that, as a result of the issuance of a UD under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice in civilian life.  

14.  On 22 May 1974, a board of officers convened to consider the applicant's case.  The board found the applicant to be undesirable for further retention in the military service because of frequent incidents of a discreditable nature and found his rehabilitation was not possible.  

15.  An Army Europe Form 113-7-R (Alcohol and Drug Abuse Prevention and Control Program Progress Report), dated 22 May 1974, shows the applicant had been mandatorily referred to the Community Drug and Alcohol Assistance Center (CDAAC) on 18 March 1974 for drug abuse following a positive urinalysis.  He was counseled during the period 9 April to 14 May 1974.  The form shows the applicant had shown a sincere desire to abstain from drug use and had been successful though one of the motivating factors for his desire for total abstinence, his family, had left Germany.  A CDAAC evaluation found that rehabilitation would produce the quality Soldier acceptable in the Army.  

16.  On 28 May 1974, an Assistant Staff Judge Advocate stated he found no legal objection to approving the applicant's UD pursuant to Army Regulation 635-200, chapter 13.  He noted the discharge was based in whole or in part on drugs and that the applicant had been mandatorily referred to the CDAAC as an identified drug abuser based on probable cause seizure.  

17.  On 29 May 1974, the separation authority approved the recommendation to discharge the applicant under the provisions of Army Regulation 635-200, paragraph 13-5a(1).  He directed the applicant's reduction to the lowest enlisted grade and issuance of a UD Certificate.  

18.  A DA Form 3647-1 (Clinical Record Cover Sheet) shows he was absent sick at a VA hospital in New York from 25 June to 6 July 1974.  His diagnosis is shown as "drug abuse, [opiates]."  

19.  On 6 July 1974, he was discharged under other than honorable conditions in accordance with the separation authority's directive.

20.  His record is void of documentation indicating he requested a hardship discharge during his active duty service.  

21.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  

	a.  Chapter 13 of the version in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  Paragraph 13-5a(1) provided for discharge for unfitness based on frequent incidents of a discreditable nature with civil or military authorities.  Members discharged for unfitness normally received a UD.  A general discharge (GD) or an honorable discharge (HD) could be issued by the separation authority if warranted by the member's overall record of service.

	b.  Paragraph 3-7a provides that an HD is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b provides that a GD 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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his UD.  

2.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for VA benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.



3.  He contends that his drug use rendered him a helpless heroin addict, and if he had been sent to the hospital for detoxification and treatment instead of being tried by court-martial (i.e., instead of appearing before a board of officers considering the recommendation to administratively discharge him), his Army career might have been saved.  

4.  The evidence of record shows his chain of command was aware of his drug use, that he was referred for the appropriate counseling, and that, prior to his discharge, he was hospitalized for drug use.  His drug use was properly addressed and treated, but it appears this only happened after a mandatory referral to the CDAAC.  He could have accessed the CDAAC on his own but apparently did not.  In any event, he was not discharged based on his drug use.  He was discharged based on frequent incidents of a discreditable nature with civil or military authorities.  

5.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the applicable regulations, that all requirements of law and regulation were met, and that his rights were fully protected throughout the separation process.  The record supports the reason and authority for discharge shown on his DD Form 214.  

6.  There is no documentary evidence of mitigating circumstances that would warrant changing the characterization of his service.  Therefore, there is an insufficient basis upon which to upgrade 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 to amend the decision of the ABCMR set forth in Docket Number AR20120015264, dated 28 February 2013.



      _______ _ 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)                                         AR20140011759



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ABCMR Record of Proceedings (cont)                                         AR20130022133



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