IN THE CASE OF:	

		BOARD DATE:	  9 September 2014

		DOCKET NUMBER:  AR20140000845 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states:

* he became addicted to heroin during his service in Vietnam
* he was court-martialed for possession of heroin in May 1970
* he completed his sentence and returned to duty
* he relapsed shortly after his release from Long Bình Jail and he used heroin constantly until he received orders to leave the country
* he started drinking heavily in an attempt to get the drugs out of his system
* he also took Vietnamese medication because he was told it would help him pass a drug test
* he was told he tested "slightly positive," but the results were accepted
* he came home to a daughter he had never seen before, learned his marriage was falling apart, and his dependency on drugs grew
* he needed more time to resolve things so he requested an extension of his leave or a change of duty station – he was denied both
* his state of mind at this time was badly flawed and he could not comprehend the severity of his actions
* after a failed marriage, he was on the streets for years before being arrested numerous times and he was finally picked up by the military police and taken to Fort Knox, KY, for trial by court-martial where he received a discharge under other than honorable conditions
* his discharge should be upgraded to honorable because he became addicted to drugs while serving in Vietnam and the addiction caused him many years of living on the streets and being incarcerated
* the addiction also caused pain and suffering for him and his family
* he felt rejected and disclaimed by both his wife and the Army during those years
* after looking back, he thinks a strong support system would have made a big difference and would have prevented his long-term drug use

3.  The applicant provides no additional evidence.

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's complete discharge packet and medical records are not available for review.

3.  The applicant enlisted in the Regular Army on 28 May 1970.

4.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was credited with service in Vietnam from 9 December 1970 through 7 December 1971.

5.  Headquarters, 4th Transportation Command Special Court-Martial Order Number 44, dated 16 July 1971, shows that on 8 June 1971 while serving in the rank/grade of specialist four/E-4, he pled not guilty but was found guilty of wrongfully possessing one vial of heroin on or about 1 April 1971.  He was sentenced to hard labor for 3 months, a forfeiture of $35.00 pay for 4 months, and reduction to the rank/grade of private/E-1.  His sentence was approved on 16 July 1971, except for the portion adjudging confinement in excess of 1 month which was suspended until 9 September 1971, at which time the suspended portion was to be remitted without further action unless the suspension was sooner vacated.

6.  Records show the applicant's status as follows:

* absent without leave (AWOL) effective 15 December 1971
* dropped from the rolls effective 15 January 1972
* returned to military control effective 13 June 1977
* dropped from the rolls effective date unknown
* apprehended by civilian authorities effective 3 February 1978
* returned to military control effective 6 February 1978

7.  On 22 February 1978, the applicant consulted with counsel and he was advised of his rights and advantages of remaining in an active duty status in the Army beyond his scheduled date of expiration of term of service (ETS) for the purpose of continued medical care or hospitalization and, if eligible, subsequent separation or retirement for physical disability under the provisions of Title 10, U.S. Code, chapter 61.  The applicant elected to not remain on active duty beyond his scheduled ETS date.

8.  On 23 February 1978, the applicant consulted with legal counsel who advised him that the government had not received the necessary documentation and/or records with which to obtain a conviction at court-martial at the time.  He was further advised that his counsel could not completely advise him without the records.  Nevertheless, having knowledge of this, the applicant waived all defenses that may have become known had his defense counsel been able to review his records.  He willingly and voluntarily declared that:

* he was AWOL from 2 January 1972 to 6 February 1978
* he made the admission for administrative purposes only to process out of the Army and he acknowledged he understood he could receive a discharge under other than honorable conditions
* his military defense counsel had explained to his complete understanding and satisfaction all legal and social ramifications of the type of discharge and what it meant in the future
* the agreement only pertained to his AWOL and he realized the Army could prefer charges any time prior to his discharge for any other military crimes that may be pending against him

9.  On 14 June 1978, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

10.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 10 months, and 11 days of active service.  He had 543 days of lost time prior to his normal ETS date (12 June-12 July 1971 and 2 January 1972-27 May 1973) and he had 1,715 days of lost time subsequent to his normal ETS date (28 May 1973-5 February 1978).

11.  On 1 May 1986, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  The applicant provided self-authored statements regarding events leading to his discharge.

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

	a.  Chapter 1 of the version in effect at the time stated the type and character of separation issued upon administrative separation from the current enlistment or period of service would be determined solely by the member's military record during that enlistment or period of service, plus any extensions thereof prescribed by law or by the Secretary of the Army, or accomplished with the consent of the member.

	b.  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, the type of discharge normally given under the provisions of this chapter, the loss of veteran's benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally furnished to an individual who was discharged for the good of the service.

	c.  Paragraph 3-7a provides that an honorable discharge 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.


	d.  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.

DISCUSSION AND CONCLUSIONS:

1.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  Although his record is void of preferred charges, he voluntarily admitted to being AWOL and elected to be discharged.  Further, he elected to be discharged on his ETS date rather than voluntarily remaining on active duty beyond his ETS date for the purpose of continuing medical care or hospitalization.  His record shows he was well advised and fully aware of the consequences of his decisions.

2.  Due to his lengthy period of AWOL, his conduct and performance were not satisfactory.  His characterization of service was properly determined solely based on his military record.

3.  There is no documentary evidence of mitigating circumstances related to his AWOL that would warrant changing the characterization of his service.  Therefore, there is an insufficient basis upon which to grant the requested relief.

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 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)                                         AR20140000845



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000845



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1