MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 12 JUNE 2003
         DOCKET NUMBER: AR2002079620

         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. Gale J. Thomas		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Eloise C. Prendergast		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.

APPLICANT STATES: That the Army Discharge Review Board rendered its decision regarding his request to upgrade his discharge by “assuming administrative regularity” in the processing of his administrative discharge. He states that documents associated with his administrative discharge were not available to the board and contends that board rendered its decision based on his recollection of events in “July 1971, while under the influence of heroin.” He states that he was not counseled appropriately concerning the ramifications of his discharge and that he received no treatment from the military even after being arrested on two occasions for possession of heroin. The applicant states he has been subjected to substantial prejudice because of his discharge and wishes to be “granted immediate relief.” He states that he has been a good husband and father, and has been active in his community for the past 31 years. In support of his request he submits extracts from a Criminal Investigation Division (CID) report associated with his apprehension for drug possession. Those same documents were contained in the applicant’s OMPF (Official Military Personnel File).

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

He was inducted and entered active duty on 13 April 1970 at the age of 20 with 12 years of formal education.

He successfully completed basic combat training and was promoted to pay grade E-2 in June 1970. Prior to completion of advanced individual training, the applicant was reported as AWOL (absent without leave) between 30 June and
2 August 1970. As a result of punishment under Article 15 of the Uniform Code of Military Justice, the applicant was reduced to pay grade E-2 and recycled to another training unit where he completed training as an armor crewman.

Following completion of training, the applicant was assigned to a unit in Vietnam. However, he failed to report to the overseas replacement station in Oakland, California as scheduled and was reported as AWOL during the period
21 October through 4 November 1970. He was again punished under Article 15 of the Uniform Code of Military Justice.

According to his records, the applicant arrived in Vietnam on 15 November 1970. He was initially assigned to the 11^th Armored Cavalry but was subsequently, in February 1971, assigned as a security guard in another organization. By June 1971 he had been further assigned to the 5^th Infantry Division where he continued to perform duties as a security guard. His conduct and efficiency rating while a member of the 11^th Armored Cavalry were excellent.

On 5 May 1971 the applicant was apprehended as he was leaving his compound in Vietnam and found to be in possession of 0.08 grams of heroin and 3.43 grams of marihuana. On 8 July 1971 the applicant failed to report for duty and was subsequently apprehended when it was discovered that he had 0.08 grams of heroin, 12.5 grams of marihuana and a 5cc plastic syringe in his possession.

His service medical records note that he was seen by medical personnel on
4 August 1971 and reported taking drugs for the past 7 months and that 3 days ago he “left [the] stockade” and “smoked heroin.” The medical official noted the applicant did not request amnesty, showed no sign of illness, and reported no allergies. He remained at the medical treatment facility until 6 August 1971 when he was released with no symptoms of withdrawal. A final diagnosis noted “improper use of drugs not involving addition or dependence.”

On 7 August 1971 the applicant was discharge under other than honorable conditions under the provisions of Army Regulation 635-200, Chapter 10 for the good of the service in lieu of trial by court-martial. His separation action was executed at Fort Lewis, Washington. A 23 September 1971 Criminal Instigation Division report notes that the applicant’s discharge under the provisions of Army Regulation 635-200, Chapter 10 was related to his apprehension for possession of drugs.

Documents associated with the applicant’s administrative separation from active duty were not in records available to the Board, but the files does indicate that the applicant acknowledged receipt of a letter prohibiting him from entering the United States Military Reservation of Fort Lewis, Fort Lawton, Yakima Firing Center, or Vancouver Barracks, Washington.

In 1982 the applicant appeared before the Army Discharge Review Board to request upgrade of his discharge. During his personal statement to that board, the applicant stated that he did receive counsel and voluntarily requested discharged for the good of the service. He stated that he did not submit a statement in his own behalf and indicated that while he was outprocessing that he failed a urinalysis when he tested positive for heroin. He indicated that he was “heavy into liquor prior to entering the service and today he still smokes marijuana occasionally.”

The Army Discharge Review Board denied the applicant’s petition to upgrade his discharge. That board also presumed regularity in the processing of the applicant’s discharge because documents associated with his discharge were not in records available to that board.

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. When court-martial charges have been preferred, a soldier is provided an opportunity to request discharge in lieu of trial by court-martial. Routine procedures in the processing of such requests include allowing the individual to consult with counsel and to make statements in their own behalf. Additionally, as part of their requested, the individual must acknowledge that he understood the nature and consequences of the undesirable discharge which he might receive, including that he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.

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 the absence of evidence to the contrary, the Board does presume that the applicant’s administrative separation was accomplished in compliance with applicable laws and regulations. The applicant’s contention that this was unjust is without foundation. The Board notes that standardized procedures are in place to protect both the Army and the individual during separation processing and there is no reason to believe that in the applicant’s case that those procedures were not followed.

2. Neither this Board, nor the Army Discharge Review Board, makes it decisions to grant or deny an individual’s request based solely on the individual’s recollection of events. Rather, the decision is made based on documents which are available to the Board as well as the usual procedures which have been established to process individuals for administrative separation. The applicant has presented no evidence that his separation was processed improperly.

3. Contrary to the applicant’s contention, his records do indicate that he received medical treatment associated with his drug use. Although the applicant may not believe that the treatment was sufficient, the evidence indicates that he was not exhibiting any withdrawal symptoms at the time he was released from the hospital and that his improper use of drugs did not involve addiction or dependence.

4. Although the applicant also contends that he has suffered from the ramifications of his discharge and that he has been a good family man and member of the community, the Board notes that he has not provided any evidence which would warrant upgrading his discharge as a matter of equity.

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 that 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

__RVO__ ___JPI __ __ECP __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002079620
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030612
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.
3.
4.
5.
6.