MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            19 April 2000
	DOCKET NUMBER:   AR1999030403

	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.

	Ms. Antoinette Farley		Analyst	

The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Van B. Cunningham		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 his undesirable discharge (UD), be upgraded to a fully honorable discharge (HD) in order to allow him to receive veteran benefits as a disabled veteran. 

APPLICANT STATES:  In effect, that he developed a drug habit while stationed in Vietnam and feels he should have been offered drug rehabilitation.  He further states he is “a disabled veteran and deserves benefits”.

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

On 3 November 1969, he enlisted in the Regular Army for 3 years and received training in military occupational specialty (MOS) 76N20 Purchasing and Control Specialist.  On 12 July 1970, he was honorably discharged. 

On 13 July 1970, he reenlisted in the Regular Army (RA) for 6 years in pay grade 
E-2.  He received further advanced individual training and was awarded MOS 76W20, (Petroleum Storage Specialist).  He was then assigned to the Republic of Vietnam (RVN), on 28 October 1970.

Between 19 January and 18 May l971, while stationed in the RVN, the applicant received six nonjudical punishments under Article 15, Uniform Code of Military Justice (UCMJ), due to different instances of misconduct: for leaving his guard post without permission (two instances); for failure to go to his place of duty (two instances); for failure to return to his place of duty; and for sleeping on his guard post.  His punishments included forfeiture of pay, suspended reductions which were later vacated, extra duty and restriction to his unit area. 

On 27 May 1971, a notification of elimination proceedings was sent by the unit commander to the applicant stating the commander’s intent to recommend separation action under the provision of AR 635-212, for unfitness.  The commander cited the applicant’s character and behavior deficiencies and subsequent commission of petty and court-martial offenses in disregard of military authority.  

On 5 June 1971, the applicant was advised by legal counsel of the basis for the contemplated separation action and its effects, and the rights available to him.  He waived a hearing by a board of officers, and representation by legal counsel, and declined to submit a statement in his own behalf. 

On 8 June 1971, court-martial charges were preferred against the applicant for three specifications of violation of the UCMJ, including: behaving with disrespect towards a superior commissioned officer, by saying to his back “chicken man” or words to that effect on 2 June 1971; for willfully disobeying a lawfully order from a noncommissioned officer, to be at the orderly room at 1500 hours on 2 June 1971; and for after having been duly placed in arrest in quarters, breaking said arrest on 4 June 1971.  His entire chain of command recommended trial by special court-martial.

On 18 June 1971, the applicant consulted with legal counsel, requested discharge under the provisions of chapter 10, AR 635-200, in lieu of trial by court martial, and elected not to submit a statement in his own behalf. 

On 23 June 1971, it was determined that if the applicant was approved for a chapter 10 discharge with a UD, that his pending separation action under 
AR 635-212, for unfitness should be withdrawn.  On 26 June 1971, his request for discharge was accepted and separation was approved for discharge under chapter 10, AR 635-200.  The issuance of a UD was directed.

He received a separation medical examination during the discharge process, but it is undated.  He signed the separation physical form and indicated in his own writing that: “I am in good health”.  He was medically cleared for separation.  There is no indication in his medical records that he received or reported for any drug treatment while he was in the RVN.

On 4 July 1971, the applicant was separated with a UD under the provisions of chapter 10, AR 635-200, for the good of the service in lieu of trial by court-martial.  He had completed 1 year, 8 months and 2 days of active military service and had 15 days lost time due to being AWOL, but no disciplinary action appears to have been taken for his two periods of AWOL from 1 to 13 August 1970 and on 18 September 1970. 

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A UD was then considered appropriate.

On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 
4 August 1964 and 28 March 1973.  This program entitled the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, education level, low aptitude scores, and/or a record of good citizenship since the time of discharge would also be considered upon application by the individual.

On 18 May 1977, the Army Discharge Review Board (ADRB) upgraded the applicant’s UD to a general discharge (GD), under honorable conditions, under the provisions of the SDRP due to his educational level.  The ADRB review action was for the discharge approved on 26 June 1971 and executed on 4 July 1971 under the provisions of chapter 10, AR 635-200.

In October 1978, Public Law 95-126 was enacted.  This legislation required that Service Departments to establish historically consistent uniform standards for discharge reviews.  Previously upgraded discharges under the SDRP and other programs were to be reconsidered using the uniform standards.  Those individuals whose SDRP upgrades were not affirmed upon review under the historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

On 11 July 1978, the ADRB reviewed the applicant’s SDRP upgrade under the provisions of Public Law 95-126.  The ADRB concluded that the discharge for the good of the service under the provisions of chapter 10, AR 635-200 was not the appropriate discharge authority, rather the discharge under the provisions of AR 635-212 for unfitness was the actual discharge authority.  The ADRB considered the applicant’s record of extensive disciplinary problems, numerous counselings and the severity of the charges for which he was awaiting a court-martial at the time he was separated, and concluded that affirmation of the SDRP upgrade of 18 May 1977 was not warranted.  Therefore, the ADRB voted not to upgrade (affirm) the applicant’s discharge under AR 635-212, for unfitness in accordance with current or uniform standards.

On 7 August 1978, the US Army Reserve Personnel Center (USARPC) completed a DD Form 215 (Correction to DD Form 214) showing that the ADRB had not affirmed his DOD-SDRP discharge upgrade under current 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's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

4.  Notwithstanding the apparent confusion in his overseas command, the Board concludes that the applicant’s discharge under the provisions of chapter 10, AR 635-200 took precedence over the discharge action that was being processed under the provisions of AR 635-212 in June and July 1971.  The discharge under the provisions of AR 635-200, chapter 10 was approved prior to the other discharge action and the DD Form 214 indicates that the discharge was under those latter procedures.

5.  Besides the charges he was facing for trial by court-martial, his substandard record of service fully supported the directed discharge action, as evidenced by his repeated NJP’s and counselings by his command.

6.  The Board could find no evidence that he had a drug abuse problem while in the RVN.  Even if so, the applicant would have violated the Army’s policy not to possess or use illegal drugs, he compromised the trust and confidence placed in him as a soldier.  The applicant had the duty to support and abide by the Army’s drug policies.  By abusing illegal drugs, the applicant knowingly risked his military career.

7.  Therefore, this Board concludes that the UD directed in June 1971 under the provisions of chapter 10, AR 635-200, was appropriate considering the facts of the case and declines to affirm the ADRB upgrade of that discharge to a GD on 18 May 1977 under the SDRP.  

8.  Entitlement to Department of Veteran Affairs benefits, to include treatment for medical problems rests with that agency not this Board.  

9.  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

__jph___  __eja___  __vbc_____  DENY APPLICATION

                         Karl F. Schneider
 Director, Army Review Boards Agency

INDEX

CASE ID	AR1999030403	
SUFFIX		
RECON		
DATE BOARDED	20000419	
TYPE OF DISCHARGE	UD 	
DATE OF DISCHARGE	19710704	
DISCHARGE AUTHORITY	AR 635-200, Chapter 10	
DISCHARGE REASON	A144.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	A70.00	
2.	A01.13	
3.	A92.17	
4.	A93.17	
5.	A94.43	
6.