MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 19 MARCH 2002
         DOCKET NUMBER: AR2001064390

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Stanley Kelley		Member
Mr. Elzey J. Arledge, 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 undesirable discharge be upgraded to honorable.

APPLICANT STATES: That his service was honorable, but his immaturity and lack of intelligence caused him to make an error by requesting a discharge (for the good of the service). His undesirable discharge was unwarranted because of the overall character of his service during which he achieved excellent conduct and efficiency ratings, to include the time that he served in Vietnam. It was only when he returned to the United States that he was badly treated. He acted foolishly and went AWOL to see his family, which included a daughter he had never seen. He did not understand the significance of his request for a discharge for the good of the service, and was rushed through the process with other scared men.

The applicant stated in an affidavit that he completed basic and advanced training with excellent conduct and efficiency ratings. He was an ammunition handler/cannoneer and was first sent to Germany where he also received excellent ratings. He was promoted to pay grade E-3. He was sent to Vietnam, arriving in January 1971. He was assigned to an artillery battalion, going from place to place, supporting infantry units. He never failed to give 100 percent while in the field, and his ratings were excellent. He suffered what he thought was a heart attack in January 1972 and was hospitalized; however, his DA Form 20 (Enlisted Qualification Record) shows improper use of drugs, which was not true. He stated that he told the doctors that he had used a small dose of heroin on two or three occasions while in the rear. He was in a drug evaluation unit for two days. There were no laboratory slips showing that he tested positive for drugs, but simply a note showing that he had a positive urine screen. He never used drugs while in the field. His service in Vietnam was honorable. His unit was in frequent direct contact with the Viet Cong. His unit would even get mortared while in base camp. He returned to the United States, looking forward to a 30 day leave and seeing his daughter for the first time. However, he was surprised to learn that he was to report to Fort Benning, Georgia, accepted it, and filed a leave request. Receiving no response, he went to his commanding officer, was subjected to a tirade from that person, but eventually was granted a two week leave. He went home, saw his daughter, overstayed his leave, and was picked up and taken to the stockade at Fort Leonard Wood, Missouri, where he was provided a briefing concerning different types of discharges. He paid little attention, as he had no intention of leaving the Army. Upon release from the stockade, he and other soldiers were offered a choice, with little time to choose, either request a discharge or return to their unit. He was asked about the effect that an undesirable discharge would have on benefits, and was given the impression that it would only be temporary. He did his time in the stockade, but did not deserve the type of discharge that he received. He was not individually counseled on all the ramifications of the discharge and did not have a mental or physical examination. He was discharged because it was shoved in his face and he was given 60 seconds to choose. He has been a good citizen after returning to civilian life, operating his own contracting business. He has been married for 18 years and has stayed out of trouble. His discharge should be upgraded as it was not fair the way he was treated.

The applicant submits copies of documents submitted to the VA and copies of VA papers reflecting its decision on his request for benefits.

COUNSEL CONTENDS: That the applicant enlisted in the Army for three years shortly after his 17^th birthday. His test scores placed him below average, and due to his low intelligence he was programmed to fail. This fact should be considered when examining his overall character of service. The applicant completed training, served in Germany, and was assigned to Vietnam in January 1970. He performed his duties admirably. There was some mention of his drug use, but it never affected his performance. He was looking forward to a 30 day leave after returning from Vietnam and expected to be treated with respect, but was not. He went AWOL and saw his daughter for the first time. After serving 30 days in the stockade, he and several other soldiers were given a few minutes to make a decision, e.g., sign a paper requesting a discharge for the good of the service, or return to their units where they were treated like dogs. He requested a discharge. In effect, his limited mental ability caused him to go AWOL and to request a discharge. He did not have the benefit of one-on-one counseling with a lawyer concerning the consequences of his actions. He was frightened, confused, and immature, and took the easiest course of action. Good leadership would have led to his retention. Subsequent to his service, the applicant has been a productive member of society, working steadily, and raising a family. The applicant’s “assembly line” discharge was illegal. He was unaware of the exact nature of the charges against him, and had no idea what the maximum punishment could be if he went through a court-martial. He was not individually counseled. His Vietnam combat service was not taken into consideration. A medical or mental examination was not performed. He appealed to the Army Discharge Review Board (ADRB), but did not obtain counsel and was unaware of the evidence and the argument needed to be successful. The ADRB decision did not contain the reasons for its decision. The applicant served his country well and he should receive an honorable discharge.

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

The applicant enlisted in the Army for three years on 19 September 1969. He was 17 years old. He completed training and in February 1970 was assigned to an artillery battery in Germany as an ammunition handler. His conduct and efficiency reports during training and while assigned to that battery were excellent. He was promoted to pay grade E-3 in May 1970. On 21 November 1970 the applicant received nonjudicial punishment for sleeping while on guard duty.
A 1 December 1970 enlisted efficiency report shows that the applicant’s first sergeant rated the applicant below average or unsatisfactory in six characteristics, i.e., attitude, initiative, responsibility, duty performance, stated that he should not be promoted, and stated that he was an immature person, a poor soldier, who required constant supervision regardless of his job assignment. He stated that he was irresponsible both on and off duty.

In February 1971 the applicant was assigned to an artillery battery in Vietnam. He was promoted to pay grade E-4 on 18 August 1971.

On 14 January 1972 the applicant was attached in a patient status to Martin Army Hospital at Fort Benning, Georgia. A 21 January 1972 medical record shows that the applicant was referred because of a positive urine screen in Vietnam. That record indicated that the applicant stated that he admitted to smoking two to three caps of heroin intermittently over six months’ duration. His condition was diagnosed as improper use of heroin, line of duty no. On 21 January 1972 he was assigned to an artillery battery at Fort Benning.

Orders published on 6 March 1972 assigned the applicant to a transfer point with a reporting date of 6 April 1972 for separation processing.

The applicant went AWOL from a leave status on 3 March 1972 and was returned to military control on 14 July 1972.

On 26 July 1972 the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He stated that he had not been subjected to coercion with respect to the request, and that he had been advised of the implications attached to it. He stated that he understood the nature and the consequences of the under other than honorable discharge that he might receive. He stated that prior to completing the request he had been afforded the opportunity to consult with counsel and that he had done so, and that counsel had fully advised him in the matter. The applicant submitted a statement to the effect that his probation officer told him that he should go into the Army to get away from trouble. He went through training, not knowing what dope was, but started taking speed, smoking hash, and dropping a lot of acid while in Germany. He went to Vietnam and overdosed on heroin his third day there. He stayed on it. Then he went to the hospital for hepatitis caused from a dirty needle. He was captured for drugs and was medically evacuated from Vietnam. He stated that he never liked the Army when he first came in and could not stand it any longer. His time in the Army has been an awful experience for him. He was always hard headed and had a hard time taking orders. He was taking pills ever since his experience with drugs. After he left Vietnam, he came home to see his 5 month old daughter. There was no way that he would stay in the Army because of his problems. He had made up his mind to be just as disobedient as he can. He stated that If he did not get this discharge he would continue to go AWOL.

The applicant’s commanding officer forwarded the applicant’s request to the separation authority, indicating that the applicant’s statement of medical examination, statement of medical history, statement by the applicant, and statement of benefits were attached. On 9 August 1972 the applicant’s request was approved by the separation authority. The separation authority directed that the applicant receive an undesirable discharge. Orders show that the applicant was discharged on 14 August 1972. The applicant’s DD Form 214 is unavailable; however, a certification of military service prepared by the National Personnel Records Center on 1 April 1989 shows that the applicant was discharged on 14 August 1972 under conditions other than honorable.

On 5 June 1981 the ADRB denied the applicant’s request to upgrade his discharge. The ADRB noted in its discussion that the applicant had ten years of education and was a mental category IV, well within the Army’s acceptable standards. It also noted that the applicant was treated for a drug problem and was hospitalized from 7-20 January 1972 for drug abuse, then assigned to an artillery unit at Fort Benning, granted leave on 8 February 1972 and failed to return, his period of AWOL commencing on 3 March 1972. The ADRB also noted that the applicant’s unit had initiated action to transfer the applicant to the Reserves with an effective date of 5 April 1972, with an honorable character of service based on a DA program concerning an expanded phase down program. The ADRB noted that he had 147 days of bad time – 133 days AWOL and 14 days hospitalization.

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. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

Paragraph 1-34 of that regulation states in pertinent part that a soldier being processed under the provisions of chapter 10 who requests a medical examination will be required to undergo a mental status evaluation.

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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. The applicant’s voluntary request for separation 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. The applicant himself stated that he had not been subjected to any coercion when making his request, and contrary to his and counsel’s statements, the evidence shows that he did consult with counsel, and that he stated that he understood the nature and consequences of the under other than honorable discharge that he might receive. 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 VA benefits.

2. Although there are no documents of a medical examination or mental status evaluation, evidence does show that the applicant’s report of medical examination and report of mental history were furnished to the separation authority. Nonetheless, there is no requirement for a medical or mental examination unless requested by the applicant; and there is no evidence that the applicant so requested. Absent evidence to the contrary, the applicant was medically fit for separation.

3. There is no evidence, nor has the applicant or counsel submitted any, to show that his discharge was a “hurry up” process. He had ample time to submit a statement in his own behalf, which he did, stating that he had no desire to remain in the Army, and would continue to go AWOL if his request for discharge was not approved. The evidence shows that the separation authority approved his request on 9 August 1972, two weeks from the date of his request.

4. 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 almost 20 years of age at the time of his AWOL, had completed training and had served in Germany and in Vietnam. While the Board has taken cognizance of the applicant’s good post service conduct, this factor does not warrant the relief requested. The discharge proceedings were fair. The character of the discharge is commensurate with the applicant's overall record of military service.

5. Neither the applicant nor counsel has submitted probative evidence or a convincing argument in support of his request.

6. 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 that requirement.
7. 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

__SLP __ __SK____ __EJA _ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064390
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020319
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.	360
3.
4.
5.
6.