IN THE CASE OF:
BOARD DATE: 3 December 2014
DOCKET NUMBER: AR20140005908
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 amendment of the following forms:
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 22 April 1971
* DD Form 261 (Report of Investigation Line of Duty and Misconduct Status), dated 3 June 1971
2. The applicant states:
a. He wants any mention of heroin use removed from his military records.
b. He turned himself in and President Nixon promised all Soldiers amnesty. This should not be reflected in his records.
3. The applicant provides:
* DD Form 261
* DA Form 2173
* self-authored statement, dated 29 May 1971
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 enlisted in the Regular Army on 27 June 1969 for 3 years. He completed his training and was awarded military occupational specialty 62M (rough terrain forklift and loader operator). He arrived in Vietnam on 24 October 1970.
3. He provided a DA Form 2173, dated 22 April 1971, which contains the following entries pertaining to heroin use:
* heroin addiction
* patient acknowledges the use of heroin
* heroin use
4. He provided a statement, dated 29 May 1971, wherein he stated he went to the Air Force Hospital and turned himself in under the amnesty program on or about 22 February 1971. He stayed there for 4 days and was released on or about 26 February 1971.
5. He also provided a DD Form 261, dated 3 June 1971, which states, "Heroin use; patient acknowledges use of heroin." The investigating officer's finding of "not in the line of duty due to own misconduct" was approved on 6 August 1971.
6. He departed Vietnam on 31 October 1971. On 11 January 1972, he was honorably released from active duty.
DISCUSSION AND CONCLUSIONS:
The applicant's contentions were carefully considered. However, there is no evidence and the applicant did not provide any evidence which conclusively refutes the entries in question on the DA Form 2173 or DD Form 261. In the absence of compelling evidence to the contrary, it must be presumed that the entries were correct. Therefore, there is no basis to amend these forms.
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) AR20140005908
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ABCMR Record of Proceedings (cont) AR20140005908
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