MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 November 2001
         DOCKET NUMBER: AR2001060095

         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. Irene N. Wheelwright		Chairperson
Mr. Stanley Kelley		Member
Ms. Karen A. Heinz		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 undesirable discharge be upgraded to honorable.

APPLICANT STATES: That his behavior was all alcohol related. If he had not been inebriated, he would not have done the things he did. He was discharged before he was given any kind of alcohol or post traumatic stress disorder (PTSD) treatment. Supporting evidence is as listed on the DD Form 149. He cites specifically page 312 of the Boston College Law Review volume 25:305, footnotes 55, 56, and 57.

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

He was inducted into the Army on 10 June 1970, after receiving a waiver for two counts of disorderly conduct and one of liquor violation. He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

On 3 December 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for absenting himself from the U. S. Army Overseas Replacement Station, Fort Lewis, WA from 3 to on or about 25 November 1970.

The applicant arrived in Vietnam on or about 31 December 1970, and was assigned to the 2d Battalion, 12^th Infantry, 25^th Infantry Division and later to the 2d Battalion, 506^th Infantry as a rifleman.

On 3 July 1971, the applicant accepted NJP under Article 15, UCMJ for striking another soldier in the face with his hand, for behaving with disrespect towards his superior commissioned officer, and for being drunk and disorderly.

On 9 November 1971, the applicant was convicted by a general court-martial of one charge of lifting a weapon against his superior commissioned officer and one charge (two specifications) of committing an assault by shooting at two specialists with an M16A1 rifle. His adjudged sentence was a dishonorable discharge, forfeiture of all pay and allowances, a reduction to pay grade E-1, and confinement at hard labor for 2 years. His approved sentence was a bad conduct discharge, confinement at hard labor for 1 year, forfeiture of all pay and allowances, and a reduction to pay grade E-1. On 20 July 1972, the U. S. Army Court of Military Review dismissed charge I and specification 1 of the second charge. It affirmed only so much of the findings of guilty of charge II, specification 2 as found the applicant did wrongfully and willfully discharge an M16A1 rifle under circumstances as to endanger human life. It affirmed only so much of the sentence as provided for confinement at hard labor for 10 months, forfeiture of $100.00 pay for 10 months, and a reduction to pay grade E-1.

On 10 August 1972, the applicant completed a restoration to duty physical examination. On his Report of Medical History, SF 93, he indicated he was in good health and had no problems (such as trouble sleeping, depression or excessive worry, loss of memory, or nervous trouble of any sort) other than a “trick” or locked knee.

On or about 11 August 1972, the applicant was reassigned to Company C, 1^st Battalion, 28^th Infantry, Fort Riley, KS.

On 28 September 1972, the applicant accepted NJP under Article 15, UCMJ for absenting himself from his unit from 29 August 1972 to on or about 26 September 1972.

On 10 October 1972, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.

On 10 November 1972, court-martial charges were preferred against the applicant charging him with assaulting another soldier and being disrespectful in language towards his superior noncommissioned officer.

On 14 December 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 under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He submitted no statement in his own behalf.

On or about 19 January 1973, the applicant completed a separation physical and was found qualified for separation. On his Report of Medical History, he indicated he was in good health and had no problems other than hearing loss and a “trick” or locked knee.

On 23 February 1973, the appropriate authority approved the applicant’s request and directed he receive an Undesirable Discharge Certificate.

The applicant’s Report of Transfer or Discharge, DD Form 214, is not available. He was discharged on 15 March 1973, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable discharge. He had completed 1 year, 10 months, and 29 days of creditable active service and had 315 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. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. A discharge under other than honorable conditions (at the time, an undesirable discharge) is normally considered appropriate.

On 12 November 1980, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

One of the documents provided by the applicant in support of his application was an article in the Boston College Law Review entitled “Paying the Price for Vietnam: Post-Traumatic Stress Disorder and Criminal Behavior.” The applicant highlighted three footnotes in the article. The first concerned a defendant who sought treatment for alcoholism only to find that the source of the alcohol abuse was an attempt to self-medicate the effects of PTSD. The second concerned two cases where the attorneys representing the veteran defendants were unaware that PTSD could be a factor in client behavior. The third described (PTSD-affected) veterans who have developed a mistrust of authority figures generally, an attitude that often sets up an “adversarial” relationship even in a treatment context.

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 applicant underwent two physical examinations, in August 1972 and in January 1973, and in neither one did he mention that he had an alcohol problem or any other kind of medical problems other than a “trick” or locked knee and hearing loss. The Board notes that he was involved in alcohol-related incidents before he was even inducted into the Army, so his contention that PTSD brought on his alcohol-problems, which resulted in his misconduct, is not credible.

4. 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

__inw___ __sk____ __kah___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060095
SUFFIX
RECON
DATE BOARDED	20011115
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19730315
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.