MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 22 May 2003
         DOCKET NUMBER: AR2002083343

         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. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Stanley Kelley		Member
Ms. Gail J. Wire		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: In effect, that his undesirable discharge be upgraded to fully honorable.

APPLICANT STATES: In effect, that he served his country honorably by serving in Vietnam, where he was wounded in combat and awarded the Purple Heart (PH). He relates some of his combat experiences, including how he witnessed people in his unit being wounded or killed. He continues that, “Midway through my tour I started to drink real heavy. There were times I thought I’d never wake up after drinking so much.”

He explains that his problem started when his luggage was lost when he was flying home on leave, and the luggage was never located and returned to him. All of his copies of his reassignment orders were contained in his luggage. He requested assistance from various officials, but without orders there was nothing they could do. He used to drink a lot to hide the pain and frustration from running into dead ends over this issue, but recognized his drinking as a problem. As a result, he quit drinking on 14 March 1984 and has remained abstinent since that date.

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

He enlisted in the Regular Army on 5 March 1969 for a period of 3 years. The applicant was a Native American with an 8^th grade education. He completed training in military occupational specialty (MOS) 11B (infantryman), and served in Vietnam from 15 October 1969 through 27 November 1970 as an infantryman in the 4^th Battalion, 3d Infantry, 11^th Infantry Brigade.

Upon the applicant’s departure from Vietnam after completion of his tour of duty, he departed absent without leave (AWOL) on 27 November 1970 by never reporting to his new assignment. He remained AWOL until he surrendered to military authorities on 8 October 1975.

On 18 November 1975, the applicant requested excess leave (creditable for all purposes except pay). In that request he said “I do not feel I should serve honorably while awaiting a 635-200 discharge for the good of the service. I have family problems to take care of at home.”

The applicant’s military records do not contain his discharge packet.

On 5 January 1976, the applicant was issued an Undesirable Discharge Certificate for Misconduct, Desertion and Absent Without Leave. His DD Form 214, separation document, shows that he was awarded the PH, the Army Commendation Medal and the National Defense Service Medal. Also reflected is 1,776 days of lost time.

Army Regulation 635-200, then in effect, sets forth the basic authority for the separation of enlisted personnel. Chapter 15 established policy, prescribes procedures and outlines the conditions and procedures for the discharge, without trial, of absentees or deserters who have returned to military control and it is determined by an administrative review of all facts there is substantial evidence to support a determination of desertion or absence without leave. When discharge for misconduct was approved, an undesirable discharge was normally considered appropriate.

The Manual for Courts-Martial, as then in effect, and the edition currently effective, both state that voluntary intoxication not amounting to legal insanity, whether caused by alcohol or drugs, is not an excuse for an offense committed while in that condition. That this standard of conduct is accepted not only by the military but by society as a whole is demonstrated by the fact that drunk drivers are held legally responsible for the results of their behavior even though they are shown to be alcoholic.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. Since the applicant’s separation packet is not contained in his records and there is no evidence or indication of any error in the applicant’s discharge proceedings, the Board must presume regularity, that the applicant’s discharge was processed in accordance with the applicable rules and regulations in effect at the time.

2. The Board does not accept the applicant’s contention that he lost his orders and nobody would assist him to return to his new duty station. Initially, the applicant knew which installation he was being assigned. Obtaining transportation to a unit is the responsibility of the soldier. If the applicant was financially unable to obtain a ticket to the installation, a simple phone call to that installation would have at least alerted his new command that he was attempting to report, and would have allowed his command to provide him assistance in that endeavor.

3. Another indicator of the applicant’s intentions was the statement he made when he requested excess leave when he was being processed for discharge. In that statement he said that he did not feel he should serve honorably while awaiting his discharge. This is certainly not a statement that would be expected from a soldier who was taking all measures to rectify his military status, as he has stated to the Board.

4. The Board has considered that the applicant had no other record of misconduct, he served in Vietnam as an infantryman, and he earned both the PH and the Army Commendation Medal for meritorious service.

5. In addition, the Board has considered whether the applicant’s alcohol abuse and 8th grade education should be mitigating factors in this case.

6. In this regard, while the applicant’s combat service was meritorious, he was never given any awards for valor. As for his alcohol abuse, the Manual for
Court-Martial specifically states that intoxication is not accepted as a defense. His 8th grade education could only be considered mitigating if there were some evidence to show that the applicant was incapable of understanding what was expected of him. There is no evidence or indication that the applicant did not understand that he was expected to report to his new duty station and of the ramifications of his failure to do so. Therefore, these considerations are rejected by the Board as a basis for upgrading the applicant’s undesirable discharge.

7. 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

___gsw __ ___sk___ ___rvo __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002083343
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030522
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.
2.
3.
4.
5.
6.