IN THE CASE OF:  	  

		BOARD DATE:  20 October 2015	  

		DOCKET NUMBER:  AR20150002322 


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 his bad conduct discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states his recruiter misled him regarding the availability of programs.  He was refused the Army Substance Abuse Program (ASAP) when he begged to enter the program because he feared a relapse.  His family contacted his commander, Captain (CPT) B., to no avail.  When he was in the military brig he was given daily doses of opiates and none at discharge.

3.  The applicant provides:

* a statement, dated 18 November 2014, from his grandparents
* a DD Form 293 (Application for the Review of Discharge or Dismissal) with 20 exhibits

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 30 March 2005, he enlisted in the Regular Army in pay grade E-2 for 
4 years.

3.  On 24 February 2006, he was placed on temporary profile for back pain/intervertebral disc disease.  Limitations included no ruck sack, no lifting; may run, do push-ups and sit-ups at own pace.  He had a magnetic resonance imaging (MRI) scheduled for 27 February 2006.  The temporary profile was scheduled to expire on 1 March 2006.  There were no medications shown as prescribed.

4.  On 8 September 2006, he was tried before a general court-martial at Fort Bliss, TX.  He pled not guilty to all charges and specifications.

	a.  Three specifications of use, possession, and possession with intent to distribute Oxycodone and Percocet were dismissed.

	b.  He was found not guilty of three specifications of use or possession of Xanax and Valium.

	c.  He was found guilty of:

* attempting to wrongfully distribute some amount of oxycodone and/or Percocet, Schedule II controlled substances to Specialist B
* between on or about 17 - 24 February 2006 stealing private funds of a value of $400.00
* on or about 20 February 2006, stealing a purse containing cash money and various credit and identification cards, of a value of about $200.00
* on or about 21 February 2006 stealing a DVD player, military property of some value, the property of the U.S. Government
* on or about 21 February 2006 unlawfully entering a store, the property of the U.S. Government, with intent to commit a criminal offense, to wit: larceny therein

d.  His sentence consisted of reduction to private/E-1, forfeiture all pay and allowances, confinement for 3 years, and discharge from the service with a bad conduct discharge.



5.  On 3 October 2006, the Hope Networks provided a letter from the founder of the statewide advocacy organization supporting prevention, treatment, and addiction recovery support, on behalf of the applicant for clemency allowing him to enter a much needed clinically sound treatment facility.  He was certain that if clemency was provided, the applicant would then enter into a long term addiction treatment center.  

	a.  The applicant's charges and crimes were directly related to misuse of very addictive drugs provided to him by the military physicians.  This is not an excuse, but a fact that should be considered.  He did disclose to the doctors his concern about taking such medications.  He tried to use other medications, but like many addict/alcoholics, he eventually gave in and took the prescriptions for pain medicine the Army doctor provided him.

	b.  Addiction is a primary disease as recognized by the American Medical Association and the World Health Organization for more than 50 years.  Despite this fact, many still view it as a moral failing, not as the brain disease that renders the addict/alcoholic powerless over their continued use of alcohol/drugs despite the repeated negative consequences/risks.

	c.  The applicant did not have the power to choose or not choose taking these medications once he started using them, he was addicted.  Addict behaviors, also out of his control, were soon to follow.  His addiction/addict behaviors eventually led to the crimes he was convicted for.

	d.  His illness did not excuse his actions.  He believed the applicant was a young man with good character, and a bad illness.  He was not blaming the military for the applicant's demise, but rather suggesting there was a better way for all involved with less harm experienced.  

6.  On 29 March 2007, the convening authority approved the sentence.  The applicant was to be credited with 205 days of confinement against the sentence to confinement.

7.  On 4 June 2007, Major General (MG) L, Commander, U.S. Army Air Defense Artillery Center and Fort Bliss denied a request for clemency.  The applicant had the benefit of a civilian attorney hired at his own expense and the benefit of a detailed military defense counsel provided at no expense to him to ensure he was represented fairly.  He indicated he would look into the points they raised with regard to the ASAP program and any comments made by trial counsel in his case.  He noted that all witnesses the defense requested were provided, without objection, at the expense of the United States.  He had faith in the fairness of the military justice system and while he regretted their grandson may have had a problem with controlled substances, clemency was not warranted in his case.

8.  On 17 August 2007, the U.S. Army Court of Criminal Appeals (USACCA) made two corrections to the court-martial order.  

9.  On 31 January 2008, the sentence having been affirmed, his bad conduct discharge was ordered to be executed.

10.  On 7 April 2008, the applicant was discharged with a bad conduct discharge as the result of a court-martial.  He completed 1 year, 5 months, and 8 days of net active service.  He had 485 days of time lost.  Item 25 (Separation Authority) shows the authority for discharge as paragraph 14-12c(2) of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  Item 26 (Separation Code) shows the separation program designator (SPD) "JKK."  Item 28 (Narrative Reason for Separation) shows the reason for discharge as "MISCONDUCT (DRUG ABUSE)."

11.  He provided a letter, dated 18 November 2014, from his grandparents.  They stated:

	a.  The Army recruited the applicant from Drug Court and the recruiter promised he could enter ASAP if he relapsed.  This was personally stated in the presence of his family.

	b.  While in field training in Texas he relapsed and the commanding officer refused him treatment and forced him to remain in field training while under the influence.  Other Soldiers in the battalion were also under the influence during field maneuvers (witnessed by family members who visited the applicant while in training and met other Soldiers).

	c.  During Hurricane Katrina the applicant's home, car, and boat were destroyed.  He was given leave to go home and view damage and he returned to his base.  Shortly after returning to base, he called home to his family suicidal on a Sunday evening.  His family made multiple calls to base numbers, including the chaplain and could get no assistance.  So the family stayed on the phone to talk the applicant down.

	d.  The applicant continued to ask for assistance from CPT B to no avail and was arrested and incarcerated in a facility, held in solitary confinement, detoxed without medication, but eventually placed in a military facility and was given daily doses of Oxycodone.  When he was released he was still on Oxycodone with only a 30-day script.  He was sent home addicted and no effort was made to address his addiction.

	e.  They provided correspondence regarding the applicant's case involving their legislators, military legal personnel, civilian legal personnel, and Army officers.

	f.  He suffered an injury that led to his being given Oxycodone. His military file noted that he had a previous substance abuse problem.  He was clean until he was given the Oxycodone for pain.

	g.  His civilian attorney was "threatened" to back off by the military prosecuting attorney at his trial.  They personally heard the statement as they were walking in the hall during the applicant's trial.  

12.  The applicant provided correspondence between his grandparents and Congressional representatives and MG L.

	a.  His grandparents expressed concern for the applicant's recruitment from drug court and that he was in relapse and his commander, CPT B, refused to send him to ASAP.  They felt the applicant was not allowed the benefits of ASAP while in the Army.  While he was incarcerated in a military facility in Oklahoma he was given Oxycontin regularly and was released with a 90-day supply and no refills.  This was the very same drug that caused him to beg his commander for ASAP.  

	b.  MG L responded to them on 26 April 2007 and 4 June 2007.  He thanked them for their concern regarding the availability of alcohol to young men and women in the Army.  He indicated he was familiar with their grandson's case.  He had the benefit of a civilian attorney hired at his own expense and the benefit of a detailed military defense counsel provided at no expense to him to ensure he was represented fairly.  He indicated he would look into the points they raised with regard to the ASAP program and any comments made by one of the Trial Counsel in his case.  He noted that all witnesses the defense requested were provided, without objection, at the expense of the United States.  He had faith in the fairness of the military justice system and while he regretted their grandson may have had a problem with controlled substances, clemency was not warranted in his case.

	c.  On 11 February 2008, The Adjutant General, (AG) Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss responded to two Congressional representatives' inquiries concerning the applicant.  The AG stated the command takes seriously its responsibility in assisting their Soldiers from using and or abusing drugs and alcohol.  Fort Bliss has several programs to assist their Soldiers.  In spite of this, unfortunately some Soldiers still tend to abuse them.  In regards to the applicant being subject to solitary confinement for 7 months, military personnel are segregated from the general population for their own protection.

13.  Army Regulation 600-85 (The Army Substance Abuse Program) governs the ASAP.  

   a.  Early identification (ID) is a critical aspect of the ASAP intervention process.  ID occurs through a variety of methods:

* Voluntary (self) ID
* Command ID
* Drug testing ID
* Alcohol testing ID
* Medical ID
* Investigation/apprehension

   b.  Commands will identify Soldiers as drug abusers based upon evidence provided by these methods.

   c.  Voluntary (self) identification is the most desirable method of discovering alcohol or other drug abuse.  The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of the abuse of alcohol or other drugs has the personal obligation to seek rehabilitation.  The Soldier’s unit commander must become involved in the evaluation process. Command policies will encourage Soldiers and civilian corps members to volunteer for assistance and will avoid actions that would discourage these individuals from seeking help.  Normally Soldiers with an alcohol or other drug problem should seek help from their unit commander; however, they may initially request help from their installation ASAP, a medical treatment facility, a chaplain, or any officer or noncommissioned officer (NCO) in their chain of command.  If a Soldier initially seeks help from an activity or individual other than his or her unit commander, the individual contacted should immediately notify the Soldier’s unit commander and installation Alcohol Drug Control Officer (ADCO).  The Limited Use policy will apply when Soldiers seek help from any of the listed personnel or organizations.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  That the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the SPD "JJD" specifies the narrative reason for discharge as "Court-Martial, Other" and that the authority for discharge under this SPD is “Army Regulation 635-200, chap 3".

16.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his recruiter told him he could apply for the ASAP program if he relapsed.  When he begged for the program, his commander refused.  His grandparents contend he was recruited from drug court and guaranteed the ASAP if he relapsed.  He received no assistance for his drug addiction.

2.  Voluntary (self) identification is the most desirable method of discovering alcohol or other drug abuse.  The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of the abuse of alcohol or other drugs has the personal obligation to seek rehabilitation.  Normally Soldiers with an alcohol or other drug problem should seek help from their unit commander; however, they may initially request help from their installation ASAP, a medical treatment facility, a chaplain, or any officer or NCO in their chain of command.

3.  While the applicant and his grandparents contend his commander refused to send him to ASAP, he could have requested help directly from the installation ASAP, a medical treatment facility, a chaplain, or any officer or NCO in his chain of command.  However, he only contends his commander would not allow him to go to ASAP.  He has provided no substantive evidence that he sought assistance from the other sources.

4.  It appears the military judge at his general court-martial did consider his addictions to illegal substances in that he dismissed or found the applicant not guilty of the specifications for the use, possession, and possession with intent to distribute illegal substances.  However, the military judge did find him guilty of the crimes of distribution, theft of $400.00, theft of $200.00 cash and credit cards, theft of a DVD player, and unlawfully entry to a U.S. Government store with the intent to commit a criminal offense.  Substance abuse and addiction do not justify the commission of a criminal offenses.

5.  The applicant was not discharged for drug abuse.  He was discharged as a result of the sentence of a court-martial for criminal offenses he was convicted of.

6.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Absent any mitigating factors, the type of discharge directed and the reasons there for were appropriate.  As a result, clemency is not warranted in this case.

7.  The evidence shows that the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

8.  Evidence shows that the applicant's records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant's records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned by amending his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 7 April 2008 as follows:

* Item 26 - delete "AR 635-200, PARA 14-12C (2)" and enter "Army Regulation 635-200, chap 3"

* item 26 - delete "JKK" and enter "JJD"

* item 28 - delete "MISCONDUCT (DRUG ABUSE)" and enter "Court-Martial, Other"



      _______ _   _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)                                         AR20150002322





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ABCMR Record of Proceedings (cont)                                         AR20150002322



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