MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            10 October 2001
	DOCKET NUMBER:   AR2001058145

	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	
	Ms. P. A. Castle		Analyst	

The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Charles Gainor		Member	
	Mr. Joe R. Schroeder		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES:  In effect, that while he was in the Army he suffered from extreme anxiety and he abused drugs.  He states that the Army never diagnosed his drug condition and that the character of his discharge is preventing him from receiving treatment from the Veteran’s Administration (VA).

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

The applicant obtained his mother’s consent to enlist for 3 years at age seventeen. On 11 June 1969 he entered active duty and successfully completed basic and advanced individual training.  

On 15 October 1969 he was assigned to Germany and on 17 February 1970 was convicted by a special court martial of failure to obey a lawful order, failure to go to his appointed place of duty and disrespectful behavior. On 10 March 1970, the sentence was approved and his sentence consisted of confinement at hard labor for one month, forfeiture of $50.00 per month for 4 months and reduction to Private E-1.  His record shows he continued to perform unsatisfactorily.  On 17 April 1970 he received punishment under Article 15, UCMJ for failure to obey a lawful order and being disrespectful in language to his superior noncommissioned officer (NCO).  On 18 July 1970 the applicant was charged with grand larceny, breaking and entering and theft.  Pending trial by special court-martial his commander recommended he be discharged for unsuitability.  

Prior to the finalization of the recommended discharge the applicant consulted with counsel and voluntarily requested discharge in lieu of trial by court-martial.  His request acknowledged that he understood the nature and consequences of the undesirable discharge he might receive.  The separation authority approved the applicant’s request on 5 August 1970 and he was issued an undesirable discharge on 12 October 1970.  The total active duty service credited to him at separation was 1 year, 3 months, and 6 days.  He had 26 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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

The applicant’s military record is lacking evidence of his contention that he suffered from anxiety and that he used drugs excessively.  The separation examination stated “no significant findings” and was signed by the applicant on   29 July 1970.

AR 635-40 pertinently provides that when a soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his rank or grade until the soldier is scheduled for separation, creates a presumption that the soldier is fit.

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 the absence of compelling evidence that the applicant was unable to both tell right from wrong and adhere to the right, the applicant's reported background as a drug abuser does not mitigate the offenses for which he sought discharge to avoid trial by court-martial and for which his service was appropriately characterized.

2.  The applicant’s military record does not make any reference to the existence of drug abuse prior to his discharge nor does the applicant provide evidence that his disciplinary actions were mitigated by drug abuse.  There is no mention of any health conditions on his separation physical.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  In order to justify correction of a military record the applicant must show to 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 this requirement.

5.  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

___jrs  __  ___cg___  ___ls____  DENY APPLICATION

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

INDEX

CASE ID	AR2001058145	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/10/10	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/10/12	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.000	
2.		
3.		
4.		
5.		
6.