MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            17 May 2000
	DOCKET NUMBER:   AR2000037566

	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. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		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:  In effect, that his discharge under other than honorable conditions be upgraded to an honorable discharge by reason of physical disability.

APPLICANT STATES:  In effect, that he should have received a medical discharge because he suffered from alcoholism at the time of the event that led to his discharge (took a joy ride in a colonel’s car).  He further states that he was an active alcoholic who was never treated for it until 1978.  He also states that he has been sober for 10 years and is currently receiving mental health treatment for a variety of issues and has had no criminal record since he became sober.

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

He was inducted in Manchester, New Hampshire on 13 October 1966 and successfully completed his training as a cook.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-5 on 8 August 1969.

His records show that he served an incomplete tour of duty in Germany           (19 months) due to his reenlisting for duty in Vietnam.  He served in Vietnam from October 1968 to October 1969 and again from March 1970 to October 1971.  After completing his last tour in Vietnam he was transferred to Fort Leonard Wood, Missouri on 9 December 1971.

During the period of 10 April 1971 to 22 January 1973 nonjudicial punishment was imposed against him on at least four separate occasions for offenses ranging from the destruction of government property, wrongful communication of a threat to do bodily harm, AWOL, and failure to go to his place of duty.  On 22 January 1973 he was convicted by a summary court-martial of speeding and operating a motor vehicle at a time when his driving privileges were suspended.  His sentence consisted of a reduction to the pay grade of E-2, a forfeiture of pay and restriction. 

On 8 April 1974 the applicant stole an automobile belonging to a captain and was apprehended by the Missouri State Police.  It was determined that the applicant was under the influence of alcohol.  He was returned to military control and while court-martial charges were being prepared against him, he went AWOL on 30 April 1974 and remained absent until he surrendered to civilian authorities on 20 May 1974 and was returned to military control at Fort Devens, Massachusetts the following day.  He was placed in pre-trial confinement at the Fort Leonard Wood Confinement Facility pending trial by a special court-martial,

After consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he acknowledged that he was voluntarily requesting the discharge of his own free will and that he had not been subjected to coercion whatsoever by any person.  He also stated that he was guilty of the charges against him or of a lesser included offense that authorized a punitive discharge (bad conduct or dishonorable discharge), that he understood the possible effects of a discharge under other than honorable conditions and the loss of benefits thereof.  He also elected to submit a statement in his own behalf in which he asserted that he was a problem drinker and that he could not adjust to Army life.  He further asserted that he did not feel that he could advance any further in the service and that he would eventually end up being discharged from the Army. 

The applicant’s company commander recommended approval of his request and stated, in effect, that while the applicant’s on-the job performance was normally above the accepted standards, his off-duty drinking habits continually interfered with his duty performance.  He also stated that professional medical personnel had indicated that the applicant was emotionally insecure and that he had turned to alcohol as a result of his insecurities.  When it became evident that his overindulgence was affecting his duty performance, he was referred to professional counselors.  However, despite a concentrated counseling program, the applicant periodically displayed incidents of misconduct often related to his drinking problems.

He underwent a medical/physical examination on 28 June 1974 and was determined to be fit for separation.

The appropriate authority (a major general) approved his request for discharge on 17 July 1974 and directed that he be furnished with an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 23 July 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 7 years, 8 months, and 20 days of total active service and had 21 days of lost time due to AWOL.  His awards included the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the Army Commendation Medal.

The applicant applied to the Army Discharge Review Board (ADRB) on 5 May 1981 requesting that his discharge be upgraded to an honorable discharge.  He cited at that time that his misconduct was alcohol related and that he should have been treated for his illness instead of being discharged.  He was granted a personal appearance before the ADRB in Boston, Massachusetts on 20 May 1982.  After reviewing the evidence and hearing testimony to the effect that he continued his alcohol abuse until 1979, when he entered an alcohol treatment program and was able to control his addiction, the ADRB denied his request. 
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge.  A discharge under other than honorable conditions is normally considered appropriate. 

Army Regulation 635-40 provides the policies and procedures for evaluating the physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  It states, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of physical disability incurred or aggravated in service. 

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.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  A request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned.  Therefore, it appears that he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

4.  The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence submitted with his application or the evidence of record.  The applicant was clearly afforded the assistance necessary to assist him in overcoming his addiction to alcohol and chose not to take advantage of the help he was afforded.  The Board also notes that rehabilitation for alcohol abuse requires voluntary participation of the individual concerned and it cannot be forced upon an unwilling participant.

5.  While the Board recognizes that the applicant had an alcohol abuse problem and was afforded help with his problem, the mere presence of an impairment does not, in itself, constitute a right to receive severance pay or medical retirement from the Army. 

6.  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. 

7.  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

__cmf___  ___fe ___  __rjw____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000037566	
SUFFIX		
RECON		
DATE BOARDED	2000/05/17	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1974/07/23	
DISCHARGE AUTHORITY	AR635-200/CH10	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000/A70.00/GD OF SVC	
2.		
3.		
4.		
5.		
6.