MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 11 July 2002
         DOCKET NUMBER: AR2002071854

         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
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. John T. Meixell		Member
Mr. Harry B. Oberg		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 under other than honorable conditions (UOTHC) be upgraded.

APPLICANT STATES: That he was suffering from post-traumatic stress disorder (PTSD). While in Vietnam, he became accustomed to being shot at and shooting at, at seeing dead bodies, and watching parts of bodies falling out of cargo nets as they picked them up to be released in the sea. He would drink until all the horrors of the day slipped past, then get up the next morning and start the same thing over again. He received three Air Medals and other medals as a reward for this way of life. After leaving Vietnam he was lucky enough to be stationed at assignments staffed with mostly Vietnam veterans. The Army understood his problems but his wife did not. She left him. Then he was sent to Germany where Vietnam vets were dismissed as a necessary evil with a company commander who had trouble running a company. After that he was worthless no matter how hard he tried. He was reassigned to Hunter Army Airfield where he set up the company motor pool but he was never promoted back to E-2. He has started a new life. He has joined the Veterans of Foreign Wars and the Vietnam Veterans of American and is a color guard who works on burial details. He provides no supporting evidence.

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

He was born on 13 May 1954. He enlisted in the Regular Army on 30 August 1971 with the consent of his parents. He completed basic combat training and advanced individual training and was awarded military occupational specialty 67U (CH-47 Helicopter Repairman).

The applicant arrived in Vietnam and was assigned to the 62d Aviation Company on 16 July 1972 as a senior helicopter mechanic. He was medically evacuated from Vietnam on 9 February 1973. The reason for his evacuation cannot be determined but on 22 December 1972 he had been treated for chest pain. It was noted at that time that he had several problems – his first sergeant was riding him, he was newly married and his wife was asthmatic, and he was worried about saving money for a house and car. He was diagnosed with situational depression. On 15 February 1973, he was given a temporary profile for emotional and attitudinal problems which could compromise his judgment and reliability.

On 30 May 1973, the applicant was honorably discharged for the purpose of immediately reenlisting on 31 May 1973.

On 9 November 1974, the applicant was counseled regarding his failure to pay just debts.

On 27 November 1974, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty.

On 13 February 1975, the applicant was counseled concerning his failure to pay just debts.

On 25 February 1975, the applicant accepted NJP under Article 15, UCMJ for absenting himself from his unit.

On 7 March 1975, the applicant was referred to the Community Drug and Alcohol Abuse Clinic (CDAAC) for alcohol abuse. His medical records indicate that no alcohol abuse was found and he was a victim of circumstances following a Fasching party.

On 28 March 1975, the applicant accepted NJP under Article 15, UCMJ for being drunk and disorderly and for willfully and wrongfully damaging nine highway markers by kicking them down. On 9 April 1975, he accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty, failing to perform extra duty, willfully and wrongfully damaging by kicking down 25 highway reflector posts, and being drunk and disorderly.

On 14 April 1975, the applicant was referred to CDAAC because of suspected drug and alcohol abuse. His medical records indicate that he refused to voluntarily submit to a blood alcohol determination but he did not appear obviously intoxicated.

On 15 April 1975, the applicant was entered into the Alcohol and Drug Abuse Control Program (ADACP). An ADACP Intake Record dated 21 April 1975 indicates the applicant had used alcohol, amphetamines, and hashish.

On 22 April 1975, the applicant was counseled concerning his failure to pay just debts.

On 13 June 1975, the applicant was convicted by a special court-martial of wrongfully appropriating an M151A-1 vehicle and neglectfully allowing that vehicle to strike a tree. He was sentenced to be reduced to Private, E-1, to forfeit $229 pay for 6 months, and to be confined at hard labor for 110 days.

An ADACP Follow-up Record dated 15 June 1975 shows the applicant had social, recreational, and peer group difficulties. He had nine urine tests since the last report and zero positive results. There is no record of when he was released from the program.

On 27 August 1975, the unexecuted portion of the applicant’s sentence was suspended for 6 months. He was released from confinement on 3 September 1975.

On 24 October 1975, the applicant accepted NJP under Article 15, UCMJ for missing unit movement on 15 October 1975.

The applicant departed AWOL from 3 – 6 November 1975.

On 23 March 1976, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) for the period 19 December 1975 to on or about 22 March 1976 (although his Personnel Qualification Record, DA Form 2-1, and his Report of Separation from Active Duty, DD Form 214, show that he was AWOL on 11 December 1975 and from 17 January – 21 March 1976).

On 28 April 1976, the applicant completed a separation physical examination and was found qualified for separation. On this date, a mental status evaluation found him to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

On 15 April 1976, 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 stated that he was proud of his Vietnam service but was ashamed of the conduct which led to his court-martial and to his present situation. He thought he had his drinking problem licked after completing his retraining at Fort Riley, KS. He tried to work his way back through the ranks when he arrived in this unit but it seemed that promotions did not come. He again began to use alcohol in excess and his duty performance and attitude became substandard. He got the feeling that his chain of command deemed him unworthy, not because of deficiencies in his work, but because of his prior court-martial record. After repeated efforts to advance and repeated requests to his command to justify his being held back, he simply gave up. He stated that he had been a soldier in combat. He had no excuse for his conduct other than frustration and the resultant alcohol abuse. He requested that, since he already had a federal conviction on his record, that he not receive an undesirable discharge, too.

On 26 April 1976, the appropriate authority approved the request and directed the applicant receive an Undesirable Discharge Certificate.

On 30 April 1976, 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 a total of 4 years, 1 month, and 26 days of creditable active service and had 185 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 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.

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 prior good service and his service in Vietnam; however, these factors do not warrant the relief requested. He was given a chance to overcome his drinking problem when he was enrolled in ADACP. It is difficult to rationalize how his troubles with his chain of command caused him to fail to pay just debts. The Board notes that he was released from confinement on 3 September 1975. It was realistic to expect his command to have considered his performance over a reasonable period of time to determine if he was worthy of promotion. Sixty to ninety days would have been reasonable; the applicant had two incidents of misconduct (on 15 October 1975 he missed unit movement and on 3 November 1975 he went AWOL) within that 60-day period.

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

__TSK__ __JTM__ __HBO___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002071854
SUFFIX
RECON
DATE BOARDED	2002/07/11
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1976/04/30
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.