MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 24 September 2002
         DOCKET NUMBER: AR2002072759

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Kenneth W. Lapin		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 be upgraded to either an honorable or medical discharge.

APPLICANT STATES: In effect, that he should have been discharged by reason of medical disability because he was addicted to drugs and alcohol and was never offered any help for his illness. He further states that he has been sober for 20 years and is a contributing member of society. He goes on to state in a two-page letter, that he enlisted on his 16^th birthday and was excelling as a soldier until he went to Germany and became involved in drugs and alcohol. He continues by stating that he really did not understand what he was doing at the time and eventually was court-martialed and sent to the Retraining Brigade at Fort Riley, Kansas, where he continued to use drugs. When he finished, he was sent to Fort Hood, Texas, where he started his habits all over again. Seeing that he had no hope of further advancement, he went absent without leave (AWOL) to his home and remained there until he was apprehended and sent to Fort Knox, Kentucky, to be court-martialed and discharged. He also states that when the day for his discharge came, he was informed that he would be held past his discharge if he wanted a physical, so he took their advice and declined a medical examination. He departed Fort Knox with no funds and had to hitchhike home. He further states that he did not use drugs and alcohol before he entered the service and since his discharge has been able to clean himself up. He contends that his disease was service-related and he has also discovered that he has a learning disability that was also not properly assessed while he was in the service. Accordingly, he believes that he deserves an upgrade of his discharge.

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

He was born in Baldwin, Wisconsin on 5 May 1960 and enlisted with parental consent in Minneapolis, Minnesota, on 6 May 1977, for a period of 3 years, training as a combat engineer and assignment to the 3^rd Infantry Division in Europe. He completed his training at Fort Leonard Wood, Missouri, and was transferred to Germany on 28 August 1977. He was advanced to the pay grade of E-3 on 3 May 1978.

On 4 October 1978, nonjudicial punishment (NJP) was imposed against him for being drunk and disorderly in public and willfully damaging a car with his fists. His punishment consisted of a reduction to the pay grade of E-2 (suspended for 3 months), a forfeiture of pay, extra duty and restriction.

He was advanced to the pay grade of E-4 on 1 February 1979 and on 28 February 1979, he reenlisted for a period of 5 years and payment of a selective reenlistment bonus.

On 31 October 1979, NJP was imposed against him for being AWOL from 14 October to 20 October 1979. His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay, extra duty and restriction.

On 14 December 1979, NJP was imposed against him for making a false official statement to law enforcement officials and for conspiring to make a false official statement with another soldier. His punishment consisted of a reduction to the pay grade of E-2 (suspended until 3 March 1980), a forfeiture of pay, extra duty and restriction.

On 7 March 1980, his commander initiated a request to bar him from reenlistment. He cited as the basis for his recommendation, the applicant’s disciplinary record, his failure to pay just debts and his failure to respond to numerous counseling sessions from his chain of command. The applicant elected not to submit a statement in his own behalf and the bar to reenlistment was approved by the battalion commander.

On 24 March 1980, NJP was imposed against the applicant for failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay and extra duty.

On 1 May 1980, NJP was imposed against him for two specifications of failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty and restriction.

He was convicted by a summary court-martial on 12 June 1980 of being AWOL from 15 May to 20 May 1980. He was sentenced to confinement at hard labor for 30 days. He was transferred to the Army Retraining Brigade at Fort Riley on 26 June 1980.

He completed his confinement, was transferred to Fort Hood, Texas on 27 August 1980 and got married on 19 September 1980. He was advanced to the pay grade of E-2 on 1 November 1980 and to the pay grade of E-3 on 1 June 1981.

Although the specifics are not contained in the available records, his records show that he was arrested and confined by civil authorities during the periods of 13 June to 7 July 1980, 8 January to 6 March 1981 and 19 March to 26 March 1981.

The applicant again went AWOL on 16 August 1981 and remained absent until he was apprehended by civil authorities in Stillwater, Minnesota, on 30 October 1981. He was returned to military control at Fort Knox, Kentucky, and on 6 November 1981, he declined to undergo a medical examination and acknowledged that he was required to undergo a mental status evaluation before he could be discharged.

Charges were preferred against him on 9 November 1981, for being AWOL from 16 August to 30 October 1981. He underwent a mental status evaluation and was deemed to be mentally responsible.

After consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In his request, he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also admitted that he was guilty of the charges against him or of lesser-included offenses, which authorized the imposition of a bad conduct or dishonorable discharge. He elected not to submit a statement in his own behalf.

He also submitted a request to be placed on excess leave pending the outcome of his request. His request for excess leave was approved effective 10 November 1981.

The appropriate authority approved his request on 11 December 1981 and directed that he be discharged under other than honorable conditions.

Accordingly, he was discharged under other than honorable conditions on 4 February 1982, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 4 year, 8 months, and 2 days of total active service and had 174 days of lost time due to AWOL and imprisonment by military and civilian authorities.

His records contain an Alcohol and Drug Abuse Prevention Control Program (ADAPCP) Follow-up Record (DA Form 4465), which shows that a report was prepared in February 1981. The report indicates that the applicant was enrolled in the program and that the counselor’s opinion of the applicant’s progress was unsatisfactory. It also indicates that he was in active rehabilitation and that that the form was a 60-day follow-up report.

There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board within that board’s 15-year statute of limitations.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions 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. 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.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. In doing so he admitted guilt to the charges against him. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the number and length of his absences as well as his otherwise undistinguished record of service.

4. The Board has noted the applicant’s contentions. However, they are not supported by the evidence submitted with his application or the evidence of record. Accordingly, the Board finds that his overall record of service is not sufficiently mitigating to warrant relief.

5. 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.

6. 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

__kwl ___ ___dh___ ___ao___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072759
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/09/24
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1982/02/04
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.