MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 February 2003
         DOCKET NUMBER: AR2002075637

         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Eloise C. Prendergast		Member
Mr. James E. Anderholm		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)

---

APPLICANT REQUESTS: A complete review and reinstatement of his general discharge.

APPLICANT STATES: That he received an upgrade of his discharge to general (under honorable conditions). However, apparently on 18 August 1978, his upgrade was revoked without his knowledge or notification of a chance to appeal. In support of his application, he submits copies of his: DD Form 214 (Report of Separation from Active Duty); letter from the Adjutant General (AG), dated 8 November 1977; Army Discharge Review Board (ADRB) proceedings; and a copy of his General Discharge Certificate.

EVIDENCE OF RECORD: The applicant's military records show he enlisted on 28 May 1970, as a helicopter repairman. He served in Vietnam from 6 January to 13 December 1971. He was promoted to pay grade E-4 effective 22 January 1971.

His awards include the National Defense Service Medal, the Vietnam Service Medal, the Air Medal, and the Marksmanship Expert Qualification Badge M-16.

Charges were preferred against the applicant on 22 November 1971, for wrongful possession of drugs, for being AWOL from 29 October to 15 November 1971
(17 days), and for escaping from military authorities.

On 23 November 1971, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10. In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if a discharge under other than honorable conditions were issued.

He elected to submit a statement in his own behalf in which he stated that he was a drug abuser since February 1971. His reason for using drugs was that he did not like his job as a crew chief on a cobra gunship and was unable to get along with the superiors. While intoxicated, his job and the people did not seem to bother him very much. He turned himself in twice as a drug abuser; however, he failed to remain off drugs. At that time he was pending discharge for unfitness based on drug abuse. He was injecting himself with drugs at least four times a day and sometime up to 20 times a day. He also stated that he was having a hard time adjusting to military life and being forced to associate with a large variety of people that he did not get along with. In summary, his main reason for his request is that he is now pending court-martial with a year and
5 months remaining and would cause himself and the Army more trouble.


The applicant underwent a separation medical examination on 26 November 1971, and was found qualified for separation.

He underwent a mental status evaluation which determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to participate in administrative or judicial proceedings.

On 29 November 1971, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate. The applicant was discharged on 14 December 1971. He had a total of 1 year, 6 months, and 17 days of creditable service and had 17 days of lost time due to AWOL.

The applicant applied to the ADRB for an upgrade of his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP). After a thorough review of his record, the ADRB could not detect any administrative errors, or any instances where his rights were abused or denied. The applicant completed approximately 12 months in Vietnam and departed Vietnam to be separated from the service. The ADRB noted that the applicant did not complete a satisfactory tour in Vietnam and could not be considered for an upgrade under SDRP. The ADRB found that the applicant was awarded the Air Medal for his service in Vietnam which qualified for consideration under SDRP. This mandated an upgrade under the SDRP and the ADRB voted unanimously to grant partial relief in the form of a general discharge. The applicant's discharge was upgraded to general (under honorable conditions) under the provisions of SDRP on 8 November 1977.

The applicant was reconsidered by the ADRB for an upgrade of his DOD SDRP discharge under Public Law 95-126. The ADRB voted to deny affirmation on 18 July 1978, under uniform standards, not withstanding the award of the Air Medal which mandated an upgrade under the SDRP.

A letter from the AG, dated 15 August 1978, informed the applicant that the previous upgrading of his discharge was re-reviewed by the ADRB as required by Public Law 95-126. Upon review, the ADRB determined that the applicant's discharge did not qualify for upgrading under the new uniform standards for discharge reviews. Accordingly, the applicant's upgraded discharge under the DOD SDRP was not affirmed. This letter also stated that because of a new law, the applicant was unable to use this discharge for benefits under the Veterans Administration (VA).





Army Regulation 635-200 sets forth the basic authority for 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.

On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between
4 August 1964 and 28 March 1973. This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

Public Law 95-126, enacted on 8 October 1977, provided generally, that no
VA benefits could be granted based on any discharge upgraded under the Ford memorandum of 19 January 1977, or the DOD SDRP. It required the establishment of uniform published standards which did not provide for automatically granting or denying a discharge upgrade for any case or class of cases. The services were then required to individually compare each discharge previously upgraded under one of the special discharge review programs to the uniform standards and to affirm only those cases where the case met those standards.

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 Board notes the applicant's request for a complete review and reinstatement of his general discharge. However, a completed review was conducted by his application to the ADRB under the DOD SDRP on 27 September 1977. His discharge was upgraded to general (under honorable conditions) on 8 November 1977.

2. The ADRB reconsidered his discharge and voted to deny affirmation under uniform standards, not withstanding the award of the Air Medal which mandated an upgrade under the DOD SDRP.

3. The AG informed the applicant by letter on 15 August 1978 that his previous upgrading of his discharge was re-reviewed by the ADRB as required by law. The ADRB determined that the applicant's discharge did not qualify for upgrading under the new uniform standards for discharge reviews. His upgraded discharge under the DOD SDRP was not affirmed.

4. The applicant’s administrative separation on 14 December 1971 was accomplished in compliance with applicable regulations, with no indication of procedural errors, which would tend to jeopardize his rights.

5. The Board finds the applicant’s misconduct by regular use of illegal drugs while on duty in a combat zone far outweighs any mitigation arising from his service there.

6. The type of discharge directed and reasons for that separation at that time were appropriate considering all of the available facts of the case.

7. 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.

8. 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

__fe___ __ep___ __ja____ DENY APPLICATION

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


INDEX

CASE ID	AR2002075637
SUFFIX
RECON
DATE BOARDED	20030206
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19711214
DISCHARGE AUTHORITY	AR .635-200, chap 10.
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	360
2.
3.
4.
5.
6.