MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            7 October 1998                                    
	DOCKET NUMBER:   AC98-10680

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. James E. Vick		Member	
	Mr. Luther L. Santiful		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the VA be informed his undesirable discharge was upgraded to a general under honorable conditions discharge.

APPLICANT STATES:  The VA is refusing him disability benefits.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Regular Army on 14 November 1967.  

On 2 March 1968, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for illegally introducing alcoholic beverages onto Fort Leonard Wood, MO.

He was honorably discharged on 24 July 1968 and immediately reenlisted on    25 July 1968 for assignment to Vietnam.

The applicant served in Vietnam from 14 September 1968 to 27 August 1969.

The applicant departed absent without leave (AWOL) 7 to 12 November 1969 and 17 December 1969 to 20 July 1970.  

In July 1970, while AWOL, the applicant was arrested in Minnesota for unlawful possession of a narcotic drug.  He pleaded guilty, was sentenced for commitment to the Youth Corrections Commission for an indeterminate period, execution of which was stayed and he was placed on probation for 3 years.

On 28 July 1970, the applicant was convicted by a special court-martial of being AWOL from 17 December 1969 to 20 July 1970.  He was sentenced to confinement at hard labor for 5 months, to forfeit $118 pay per month for             5 months, and to be reduced to pay grade E-1.

The applicant departed AWOL several more times.

On his interview sheet dated 9 Marcy 1971, upon his return to military control after one period of absence, the interviewer noted “EM is flying high!  Doesn’t know what he is reading, so did not sign statements.”

The court-martial charge sheet is not available.

The applicant completed a separation physical and was found qualified for separation.

On or about 17 June 1971, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf 

On 14 July 1971, the appropriate authority approved his request and directed he receive a discharge UOTHC.

On 24 August 1971, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service with a discharge UOTHC.  He had completed 2 years, 4 months and 16 days of creditable active service and had 603 days of lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes 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.  A discharge under other than honorable conditions is normally considered appropriate.  

On 9 August 1972, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

On 22 June 1977, the ADRB, under the provisions of the Department of Defense Special Discharge Review Board (SDRP), upgraded the applicant’s discharge to a general discharge under honorable conditions.

On 28 August 1978, the ADRB, having re-reviewed the applicant’s record as required by Public Law 95-126, determined not to affirm the applicant’s             re-characterization of his discharge.  While that board accepted the fact the applicant was publicly a drug abuser, the majority of the ADRB did not accept his drug abuse as a sole reason for his misconduct.  It noted that he was AWOL on 7 occasions and was confined by military authorities on 5 occasions.  Although he was credited with the completion of a satisfactory tour in Vietnam under the SDRP, that factor was not sufficient to warrant affirmation pursuant to Public Law 95-126.

Public Law 95-126 provided in pertinent part for a “Relook Program.”  All cases upgraded from under other than honorable conditions under the SDRP or Presidential Proclamation programs (and their extensions) had to be relooked and affirmed or not affirmed under uniform standards.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant’s voluntary request for separation 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.  There is no indication that the request was made under coercion or duress.

3.  The applicant was informed by the Army Discharge Review Board in 1978 that their action not to affirm may impact on his ability to acquire VA benefits.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director