MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           10 January 2002
	DOCKET NUMBER:   AR2001061208

	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	
	Mrs. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. John T. Meixell		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 under other than honorable conditions (UOTHC) discharge be upgraded to honorable and that he be given Department of Veterans Affairs (VA) benefits.

APPLICANT STATES:  In effect, that he was a good soldier and that he would have gladly fought and died for his country.  He also states that, while stationed in Germany, he was injured during live fire exercises and that it is documented in his medical record.

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

He enlisted in the Regular Army on 19 March 1979 for a period of 3 years.  He enlisted for the United States Army (USA) Combat Arms Unit/ Area of Choice Enlistment Option and training in Career Management Field 19, Armor Specialist. Following completion of all military training, he was awarded military occupational specialty (MOS) 19E, Armor, and was assigned to Germany.

On 19 September 1979, the applicant was promoted to private/E-2 and on 19 March 1980, he was promoted to private first class/E-3.

On 24 June 1980, the applicant fell down and injured his foot.  He was evaluated by medical personnel and diagnosed with a sprained left ankle.  He was placed on profile - no climbing for 48 hours.  

On 26 October 1980, while in Germany, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty.  His punishment consisted of reduction to private/E-2 and 14 days of restriction and extra duty.

While stationed in Germany with Company B, 4th Battalion, 73rd Armor, the applicant returned to the United States on ordinary leave.  When his leave expired, he failed to return to his unit and, on 31 October 1980, his status was changed from ordinary leave to absent without leave (AWOL).  He remained AWOL until 2 December 1980 when he surrendered to military authorities at Fort Dix, New Jersey.  He was assigned to Company A, USA Personnel Control Facility (PCF), Fort Dix.

On 9 December 1980, the applicant departed the Fort Dix PCF in an AWOL status and remained absent until 15 February 1981 when he again surrendered to military authorities at Fort Dix.  Court-martial charges were preferred against him.

On 10 March 1981, while being interviewed by the staff of the PCF, the applicant stated that he was using heroin in Europe and, when he returned to the United States on leave, he started using speed.  He also stated that he did not go back to Germany because he was trying to get help for his drug problem.  The applicant requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, AR 635-200.

The commander of the PCF contacted the applicant’s prior commander in Germany and obtained a brief history of his service there.  The applicant’s prior commander noted that the applicant had been in a drug program since June 1980 and that he had been dropped from the program as a rehabilitation failure.  The Drug and Alcohol Program documentation is not available.

The PCF commander contacted the office of the Judge Advocate General (JAG) to determine whether chapter 9 (substance abuse rehabilitation failure) or chapter 10 was the more appropriate chapter for discharge.  The JAG office stated that either chapter would be appropriate.  After reviewing all of the evidence, the PCF commander decided to process the applicant for separation under the provisions of chapter 10, AR 635-200.  The complete administrative separation packet is not in the record.

On 27 May 1981, the applicant was discharged from the Army under the provisions of chapter 10, AR 635-200 by reason of administrative discharge - conduct triable by court-martial.  He was credited with 1 year and 11 months of creditable military service and 102 days of lost time.

AR 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.  

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 this requirement.

2.  Although a complete administrative separation packet cannot be found in the applicant's records, the Board presumes Government regularity in the discharge process.  The evidence of record shows the applicant was discharged under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant would have been required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated offenses under the UCMJ.  In the absence of information to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The Board notes that the characterization of service for this type of discharge is normally under other than honorable conditions and, considered the applicant’s entire record of service for the period under review, the Board is convinced that the reason for discharge and the characterization of service were both proper and equitable.

3.  The Board noted that the applicant’s medical records show that he injured his left foot while serving in Germany, however, the injury was not serious.  

4.  Granting access to VA benefits is not within the purview of this Board.  The applicant should contact the Department of Veteran Affairs to determine eligibility for benefits.

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

__FNE__  ___TSK__  ___JTM_  DENY APPLICATION

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

INDEX

CASE ID	AR2001061208	
SUFFIX		
RECON		
DATE BOARDED	20020110	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19810527	
DISCHARGE AUTHORITY	AR 635-200, c10	
DISCHARGE REASON	In lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.