MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 May 2003
         DOCKET NUMBER: AR2002082513

         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:

Ms. Margaret K. Patterson		Chairperson
Mr. Ted S. Kanamine		Member
Mr. Lawrence Foster		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 a more favorable discharge.

APPLICANT STATES: That after about 1½ months in Vietnam he was informed that his oldest sister had been killed and that he would not be able to go to the funeral. This caused him lots of emotional hardships and after 5 months of being assigned to the 3^rd Field Hospital in Saigon, he was diagnosed as a schizophrenic and was transferred to Fort Lewis, Washington. He goes on to state that 4 months later, he went to his commander and told him he quit. He continues by stating that at the time he was not in his right mind and believes that he was discharged because the Army was downsizing. He desires to get his discharge upgraded so that he may obtain Veteran's benefits.

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

He was born in Anchorage, Alaska, and enlisted in Portland, Oregon, on 14 May 1971, for a period of 3 years. He completed his basic combat training at Fort Lewis and was transferred to Fort Sam Houston, Texas, to undergo his advanced individual training (AIT) as a medical corpsman. He successfully completed his AIT and received orders transferring him to Oakland Army Base, California, for further assignment to Vietnam, with a report date to Oakland of 26 November 1971. He departed Fort Sam Houston on 1 November 1971.

The applicant did not report to Oakland as ordered until 30 November 1971 and nonjudicial punishment (NJP) was imposed against him on 1 December 1971, for being absent without leave from 26 November to 30 November 1971. His punishment consisted of a forfeiture of pay.

He was transferred to Vietnam on 10 December 1971 and was initially assigned to the Drug Treatment Center for duty as a medical corpsman. In April 1972, he was reassigned to the 3^rd Field Hospital, for duty as a medical corpsman.

On 17 May 1972, NJP was imposed against the applicant for sleeping at his guard post (back gate of hospital). His punishment consisted of a forfeiture of pay.

On 1 June 1972, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of a forfeiture of pay.

On 15 June 1972, NJP was again imposed against him for sleeping on his guard post. His punishment was again a forfeiture of pay.

Although all of the specifics are not present in the available records, it appears that the applicant was admitted to the detoxification center of the hospital in Vietnam for drug use. He was placed in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) and on 18 September 1972, he was transferred to the ADAPCP for in-patient treatment at Madigan Army Hospital, Tacoma, Washington. He was subsequently released from the hospital and was assigned to an engineer company at Fort Lewis.

On 4 December 1972, NJP was imposed against him for failure to go to his place of duty. His punishment consisted of a reduction to the pay grade of E-3 (suspended for 30 days), extra duty and restriction.

On 8 January 1973, he went AWOL and remained absent until he was returned to military control on 7 February 1973 and charges were preferred against him for the AWOL offense.

On 1 March 1973, the applicant walked into the troop medical clinic with a marijuana cigarette behind his left ear and one in the cuff of his trousers. Additional charges were preferred against him for the possession of marijuana and he was again enrolled in the ADAPCP.

On 4 March 1973, 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 acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He further elected to submit a statement in his own behalf whereas he asserted that he was having problems that included drugs, a death in the family (oldest sister shot in Los Angeles, California) and thinking about all he had lost while in the Army. He further stated that he dealt with his problems by smoking "Skag" and doing "Speed". All he wanted to do all day was smoke dope or take pills because that was the only time he could forget his problems. He also stated that he had taken everything from marijuana to heroin to acid to speed and that being in the Army gave him access to any drugs he wanted. He continued by stating that he desired to get out of the Army, away from the supply sources that were present and to go home to Alaska and work the land he received from the Government under the Native Land Grants.

The applicant's commander endorsed the request and indicated that after he had heard two different stories regarding his sister's death, he had granted the applicant leave to go to Alaska and bury his sister in a Native ceremony with his brothers, only to find out later that he spent the entire time in the Portland area. He also stated the applicant had been afforded the means by which to overcome his problems and that he had not completed the urine test portion of the ADAPCP. In fact, it was when he came in to give a urine sample that he had marijuana in his possession, on his ear and in his trousers. Additionally, he openly claimed that he would go AWOL again if he did not receive a Chapter 10 discharge. He recommended that the applicant receive an undesirable discharge.

The applicant's battalion commander indicated that the applicant had admitted to long-standing drug use since the age of 14 and despite all attempts to rehabilitate the applicant, he persisted in using drugs and stating that he would continue to go AWOL. He further stated that the applicant had undergone psychiatric treatment and that he had reneged on the drug program. He also recommended that the applicant be given an undesirable discharge.

The appropriate authority (a major general) approved his request on 13 April 1973 and directed that he be issued an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 10 May 1973, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 10 months and 22 days of total active service and had 35 days of lost time due to AWOL. His awards included the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.

There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge 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 voluntary 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 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 was at that time and is still 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. 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 nature of his misconduct during a short period of time.

4. The applicant’s contentions and supporting documents have been considered by the Board. However, they are not sufficiently mitigating to warrant relief when compared to his overall record of service and his repeated misconduct.

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

__tk ____ ___lf____ __mkp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082513
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/05/13
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1973/05/10
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.