MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  24 May 2000
	DOCKET NUMBER:   AR1999031650

	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. Vic Whitney		Analyst	

  The following members, a quorum, were present:

	Mr. John M. Slone		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Mark D. Manning		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, upgrade of his discharge under other than honorable conditions to a more favorable characterization.

APPLICANT STATES:  That his discharge was too harsh considering the nature of the offense and mitigating circumstances.  He was very young and immature which led him to take drugs to cope with his life.  He tried to seek help to cope with the ravages of war but was not provided any assistance.  With appropriate counseling and rehabilitation he would have succeeded.  He has been clean and sober for over 11 years.  He submits several character reference letters and a letter from his wife of 2 years.

COUNSEL CONTENDS:  That the applicant’s over-all service record is more deserving of an honorable type discharge based on his year in Vietnam and award of the Combat Infantryman Badge.  Additionally, his addiction to drugs diminished his ability to serve and could account for his acts of misconduct or lack of judgement.

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

He was inducted at 18 ½ years of age and entered active duty on 24 June 1969. He completed infantry training and was assigned to Vietnam for 11 months.  He was awarded the Combat Infantryman Badge and the Army Commendation Medal.  While in Vietnam he reenlisted for 3 years for reassignment as a field wireman effective 29 May 1970.  He was promoted to grade E-4 effective 4 August 1970.

Upon return from Vietnam he was AWOL for 11 days.  While assigned to Fort Ord he was punished under Article 15, UCMJ on five occasions.  The offenses included failure to go, disobeying a lawful order, and absent from his place of duty.  He was reduced to grade E-3 effective 15 April 1971.

The applicant was assigned to Germany in January 1972.  On 29 August 1972 he was convicted by special court-martial of failure to go and missing movement. On 27 December 1972 he was punished under Article 15, UCMJ for stealing cigarettes from the PX.  On 12 February 1973 he was again punished under Article 15, UCMJ for failure to go.

On 9 March 1973 charges were preferred for five specifications of failure to go and two specifications of disobeying a lawful order.  On 15 March 1973 the additional charge of disobeying a lawful written order was preferred.

The additional facts and circumstances concerning the applicant’s discharge in lieu of trial by court-martial are no longer in the available record.  However, in May 1980 he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge based on his drug use being influenced by friends who used drugs so it was not his fault.  The hearing review document for the ADRB shows that the applicant received a mental status examination and no significant mental illness was evident.  He also had a separation physical examination on 20 March 1973 with no apparent defects requiring physical disability processing but did note “Tracks on left arm.”  Other medical records noted heroin use and hospitalization in January 1973.

On 5 April 1973, after consulting with counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial.  He declined to submit a statement in his own behalf.  The separation authority approved the request and directed discharge under other than honorable conditions.

Effective 20 April 1973 the applicant was separated under the authority of 
AR 635-200, chapter 10, under other than honorable conditions.  He had 3 years, 8 months, and 27 days creditable service and 32 days 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 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 30 April 1982 the ADRB, in a unanimous decision, voted to deny the applicant’s request for a discharge upgrade based on the overriding nature of the recorded indisciplines and the constant misconduct surrounding the reason for discharge.

The character reference letters provided by the applicant attest to his difficulties from his Vietnam experiences; that he is honest, caring, reliable, and learns from his mistakes.  He has shown personal growth and improvement that has earned respect from others.  He has completed several residential treatment programs and has no local criminal record.

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 evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant was over 20 years of age at the time of his first offense.  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.

3.  While the Board is empathetic, the applicant's personal problems and his good post-service conduct are not sufficiently mitigating to warrant an upgrade of his discharge.  There is no evidence of record that the numerous acts of misconduct were attributed to personal problems that the command refused to help him with.  In view of the applicant's numerous acts of indiscipline, it does not appear that his discharge was too severe.

4.  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.

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

_JS____  ___MW___  __MM___  DENY APPLICATION

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

INDEX

CASE ID	AR1999031650	
SUFFIX		
RECON		
DATE BOARDED	20000524	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19730420	
DISCHARGE AUTHORITY	AR 635-200, CH 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.02	
2.		
3.		
4.		
5.		
6.