MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 September 2001
         DOCKET NUMBER: AR2001058421

         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. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Curtis L. Greenway		Member
Mr. Donald P. Hupman, Jr.		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)

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APPLICANT REQUESTS: That his discharge under other than honorable conditions (UOTHC) be upgraded to a discharge under honorable conditions.

APPLICANT STATES: That his father had suffered a heart attack. He had initially taken a week of leave and when he called for an extension he was told to take what time he needed. He believes he took about 35 days and he reported back to Fort Sill, OK. When he returned, he wrote a letter asking for an early discharge because of his family situation. He served honorably in Vietnam. In the past two years he has had open-heart surgery and a stroke and he needs the upgrade so he can receive VA health care. He provides his Report of Transfer or Discharge, DD Form 214, as supporting evidence.

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

He was inducted into the Army on 10 September 1969. He was honorably discharged on 15 September 1969 for the purpose of enlisting in the Regular Army. He completed basic combat training and advanced individual training and was awarded military occupational specialty 24B (Hawk Continuous Wave Radar Mechanic). He was later awarded primary military occupational specialty 94B (Cook) based upon civilian experience.

On 7 September 1970, the applicant was honorably discharged for the purpose of immediately reenlisting on 8 September 1970.

The applicant arrived in Vietnam on or about 24 November 1970. He was assigned to the 585^th Transportation Company, the 666^th Transportation Company, and Headquarters and Headquarters Detachment, 1^st Military Intelligence Battalion as a cook.

On 3 June 1971, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for stealing a tape recorder, value of about $228.00. He did not appeal.

On 19 November 1971, the applicant was assigned to the U. S. Army Detoxification Center, Long Binh, Vietnam apparently as a result of heroin addiction. He was transferred to the U. S. Reynolds Army Hospital, Fort Sill, OK on 6 December 1971. He attended out-patient group therapy sessions until 25 February 1972 when he quit the group. He was discharged from the program in April 1972.

On 17 October 1972, court-martial charges were preferred against the applicant charging him with absence without leave (AWOL) from 4 September to on or about 16 October 1972.

On 20 October 1972, the applicant completed a separation physical examination and was found qualified for separation.

On 18 October 1972, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits. He submitted a statement in his own behalf. He explained the Article 15 by stating he was holding the tape recorder until a debt the owner owed him was paid. He had no place to store the recorder so he gave it to a friend to store. When the owner paid him a portion of the debt owed, the applicant was informed that the recorder had been taken from his friend’s locker. He was accused of the theft. He had several reasons for requesting discharge. His marriage was in trouble due to the separations his assignments caused. He felt his superiors were prejudiced against him because of his earlier drug addiction even though he performed his duties. He went AWOL because his father had a heart attack. The Red Cross informed his unit but his unit said the call was not needed.

The company and battalion level commanders at the Personnel Confinement Facility, Fort Sill, OK recommended approval of the applicant’s request with a general discharge.

On 7 November 1972, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 7 November 1972, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial. He had completed 2 years, 10 months, and 27 days of creditable active service and had 60 days of lost time (18 days due to incapacitation for duty due to own misconduct and 42 days AWOL). His Enlisted Qualification Record, DA Form 20, shows that up until the time he was separated his conduct and efficiency, even in Vietnam, had been rated as “excellent.”

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 discharge UOTHC is normally considered appropriate. If warranted, however, the discharge authority may direct an honorable or general discharge. A general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

Commander, U. S. Total Army Personnel Command (PERSCOM) message 150800Z February 1995 clarified an earlier message concerning the requirement to add a statement in item18 of the DD Form 214 concerning a member’s initial term of service. It directed that the following statement would be added to all DD Forms 214 without exception: “Member (has) (has not) completed first term of service.” Normally, a member should not be considered to have completed the first full term of active service if separation occurs prior to the end of the initial contracted period of service. However, if a member reenlists prior to the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment and should be considered to have been completed upon execution of a reenlistment contract. If a soldier has reenlisted, he/she is considered to have completed the first full term of enlistment.

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. 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 Board notes the applicant’s service in Vietnam but concludes that, with his record of an Article 15 and heroin addiction there, it was not sufficiently meritorious to warrant the relief granted.

4. The applicant had two prior honorable discharges. The VA may not be considering these two discharges, particularly the discharge of 7 September 1970, to be completed terms of service. Under current standards, a discharge for the purpose of immediate reenlistment would be considered a completed term of service and it would be appropriate to correct his DD Form 214 for the period ending 7 November 1972 to reflect this. Under their own policies and regulations, the VA may or may not accept this correction in determining his right to VA health care.

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.

NOTE: The Army Review Boards Agency, Support Division, will be directed to administratively correct the applicant’s DD Form 214 for the period ending 7 November 1972, item 30 to show he had completed his first full term of service.

BOARD VOTE:

__cla___ __clg___ __dph___ GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

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

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INDEX

CASE ID	AR2001058421
SUFFIX
RECON
DATE BOARDED	20010911
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19721107
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	110,00
2.
3.
4.
5.
6.