MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 August 2003
         DOCKET NUMBER: AR2002082728

         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. W. w. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. James E. Anderholm		Member
Ms. Linda M. Barker		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: Upgrade of his undesirable discharge to honorable.

APPLICANT STATES: That he served in Vietnam for 18 months. He came home because of the death of his brother. The Army tried to send him back, but he was addicted to heroin in Vietnam and too sick to go back. It was easier for the Army to discharge him rather than help him. He believes the Board should find it in the interest of justice to consider the case because he now has cancer (Non-Hodgkin's lymphoma) related to exposure to Agent Orange. He did not submit any substantiating medical records.

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

He enlisted and entered active duty on 6 March 1970. He did not list any siblings on his enlistment application. He completed training as a helicopter repairman and was assigned to the 175^th Aviation Company in Vietnam on 11 September 1970.

He departed Vietnam of 17 September 1971 and reported to the 507^th Medical Company at Fort Sam Houston, Texas on 20 September 1971. There he received nonjudicial punishment (NJP) under the provisions of Article 15 Uniform Code of Military Justice (UCMJ) on 7 December 1971.

He was reported absent without leave (AWOL) from A Company , 5^th Transportation Battalion, 101^st Airborne Division at Fort Campbell, Kentucky on 27 July 1972. On 4 August 1972, he received NJP for missing formation and breaking restriction at Fort Carson, Colorado, on 3 August 1972.

A 4 August 1972 letter notified the applicant's father that he was AWOL. The father responded in a 6 September 1972 letter to the effect that, "my only child, my son, enlisted…knowing full well that with my disability he would probably never have been drafted." The father reported that he had traveled from New Mexico to Arkansas to reason with the applicant about returning to duty. He also reported that the applicant was "a drug addict" and pleaded that he be committed for treatment. The father did not have an address, but he provided the name of the company where he believed the applicant was working.

The applicant was returned to military control on 27 October 1972 and when charges were prepared for the AWOL the applicant consulted with counsel and voluntarily requested discharge in lieu of trial by court-martial. He acknowledged that he would normally receive an undesirable discharge and that he understood the consequences of that discharge included the loss of veteran benefits under state and Federal law. He submitted a statement to the effect that he had a poor attitude toward the Army because the noncommissioned officers and officers were lacking in leadership and were unfair to him and his family. He stated, "I have no rehabilitative potential."

In medical history, which he provided for a 3 November 1972 separation medical examination, the applicant reported that his health was good and he indicated that he had no physical or mental health problems. At a mental status evaluation (MSE) the applicant's behavior was normal. He was fully alert and oriented and displayed an unremarkable mood. His thinking was clear, his thought content normal and his memory good. There was no significant mental illness. The psychiatrist, who conducted the examination, found the applicant was mentally responsible. He was able to distinguish right from wrong and to adhere to the right. He was found medically fit for separation with a 1.1.1.1.1.1 physical profile. The applicant's request was approved and he was administratively reduced to pay grade E-1

On 20 February 1973 the applicant was separated under the provisions of Army Regulation 635-200, chapter 10. He had 2 years, 8 months and 14 days of creditable service and 93 days lost time.

The applicant's DD Form 214, (Report of Transfer of Discharge) shows in item 22c that he served 1 year, 9 months and 8 days in Vietnam and shows in Item 30 (Remarks) that he served in Vietnam from 5 September 1970 to 12 June 1972. His DA Form 20 (Enlisted Qualification Record), Item 31 (Foreign Service) shows service in Vietnam from 5 September 1970 to 12 June 1972. These dates do not agree with the information in item 36 (Records of Assignments) as reported above.

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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

The UCMJ, Table of Maximum Punishments shows that a punitive discharge is authorized for any AWOL of more than 30 days.

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

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court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.

2. Except for the father's letter, there is no available evidence that the applicant suffered from drug addiction. The applicant had a separation medical examination, including a MSE performed by a psychiatrist, but drug addiction is easily concealed and the applicant clearly did not report that he had any health problem. Addiction to illegal drugs does not excuse either itself or any other unacceptable behavior.

3. The Board acknowledges that the applicant served his tour of duty in Vietnam without an offense of record, but there is no convincing evidence that he served significantly more than a normal 1-year tour. Additionally, in light of his current assertion, that he was an addict when he came home from Vietnam [where the quality of his performance as a helicopter mechanic might have been a matter of life and death for others] that tour of duty does nothing to mitigate the offense that led to his discharge.

4. 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.

5. 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__ ___JEA__ __LMB __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002082728
SUFFIX
RECON
DATE BOARDED	20030814
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19730220
DISCHARGE AUTHORITY	AR 635-200,.CH 10 . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	A70.00
2.
3.
4.
5.
6.