MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 31 JULY 2003
         DOCKET NUMBER: AR2003087254

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Ms. Gail J. Wire		Chairperson
Ms. Karen A. Heinz		Member
Mr. Robert L. Duecaster		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, disability retirement or separation.

APPLICANT STATES: On 4 July 1971, while assigned to Vietnam as an "artillery spotter" in the vicinity of the 11^th Infantry Brigade, he was involved in an air strike which resulted in the death of friendly forces. He states, in effect, because of previous bad publicity for the 11^th Infantry Brigade stemming from the My Lai Massacre incident, he states that he was held "incommunicado" for nine days in a box usually used for interrogation of prisoner of wars. He states that his Vietnam records were destroyed or subsequently classified and that he was used as a "scapegoat and for no legal reason" was sent to the stockade.

The applicant states that the trauma he experienced as a result of this incident has impacted his whole life and he maintains, in effect, that he should have been medically retired from the military. He states that he sustained breathing problems for the use of Agent Orange by American forces in Vietnam long after the Department of Defense was told to stop using the agent. He states that he also entered the Army with a hearing problem and that the problem was made worse by his assignment to artillery duties.

The applicant states that unless his Vietnam era records can be recovered or declassified that his case cannot be fairly reviewed. He states that he wants the individuals involved in the massive cover-up of his situation brought to justice.

In support of his request he submits several self-authored statements, and extracts from publications dealing with the My Lai Massacre, operations of the 11^th Infantry Brigade, and the use of herbicides in Vietnam.

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

He entered active duty on 27 July 1969 at the age of 17, with 10 years of formal education, and a GT (general technical) score of 110. With two exceptions, all of the applicant's aptitude scores were above 100. The two exceptions were scores in the 90s. His enlistment physical examination noted that he had a history of ringing in both ears and was given a P-2 profile for his defective hearing and vision.

The applicant successfully completed training as an artillery surveyor and in January 1970 was assigned to an artillery unit in Germany. He was promoted to pay grade E-3 on 30 January 1970.






While in Germany the applicant was punished three times under Article 15 of the Uniform Code of Military Justice. His offenses included failing to return to his unit when his pass expired, leaving his guard post without being relieved, and being disrespectful to a senior noncommissioned officer.

In October 1970 orders were issued reassigning the applicant to Vietnam. His assignment orders directed him to report to the Overseas Replacement Station at Fort Lewis, Washington for onward transportation to Vietnam. His reporting date to Fort Lewis was established as 29 November 1970.

However, the applicant failed to report to Fort Lewis as directed and was reported as AWOL (absent without leave). He returned to military control on
25 January 1971 but again departed AWOL on 6 March 1971. He returned to military control on 25 April 1971 and was subsequently convicted by a special court-martial at Fort Lewis. His sentence included reduction to pay grade E-1, forfeiture, and confinement at hard labor for 6 months. The confinement portion of the sentence was suspended for 6 months.

The applicant arrived in Vietnam on 29 May 1971 and was temporarily assigned as a student at the 23^rd Administration Replacement Detachment. On 8 June 1971 he assumed duties as a survey recorder with Headquarters and Headquarters Battery, 23^rd Infantry Division Artillery.

On 10 August 1971 orders were issued by the 23^rd Infantry Division Artillery vacating the applicant's sentence to confinement at hard labor. The basis for the vacation of the confinement sentence was not in records available to the Board. However, the applicant's conduct and efficiency while assigned to the 23^rd Infantry Division Artillery was recorded as unsatisfactory.

The applicant also related, in a personal appearance before the Army Discharge Review Board in 1979, that he had begun using drugs while in Europe. He indicated that after his arrival in Vietnam and participation in the 4 July 1971 friendly fire incident he became "remorseful" and "refused to perform further duty…." He also noted that while in Vietnam he began to abuse heroin "precipitated by the stress of his military duty and his fear of service in combat."

As a result of the 10 August 1971 order, the applicant was assigned to the Correctional Holding Detachment in Vietnam and on 23 August 1971 was reassigned to the confinement facility at Fort Riley, Kansas.






In November 1971 the applicant's "unexecuted portion" of his sentence to confinement at hard labor was, once again suspended, and the applicant was reassigned to Fort Carson, Colorado. On 22 November 1971 the applicant was apprehended by civilian law enforcement personnel in Colorado Springs, Colorado for the sale and possession of hashish. There is no indication regarding the disposition of those charges.

Notwithstanding the civilian apprehension in November 1971, the applicant was promoted to pay grade E-2 in January 1972.

On 17 February 1972 he again departed AWOL. He returned to military control on 24 February and departed AWOL again on 1 March 1972. He returned to military control on 26 May 1972.

Although documents associated with the applicant's administrative separation from active duty were not in records available to the Board, the applicant's separation document indicates that he was discharged on 21 July 1972 "for the good of the service" under conditions other than honorable.

His separation physical examination, conducted in June 1972, found him medically qualified for separation. A mental status evaluation, conducted on
1 June 1972 indicated the applicant was fully oriented, his thought process was clear and normal, that he was mentally responsible, able to distinguished right from wrong, and that he met medical retention standards.

In 1979 the Army Discharge Review Board unanimously denied the applicant's petition to upgrade the character of his discharge.

It appears the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial. 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. Included in the procedures for requesting a separation for the good of the service, in lieu of trial by court-martial, is a provision for the soldier to consult with counsel prior to executing his voluntary request for separation.





Army Regulation 635-40, which establishes the policies and procedure for the separation or retirement of soldier’s by reason of physical disability states that soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions unless the general court-martial convening authority determines that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions.

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 concludes that the applicant's administrative separation was accomplished in accordance with applicable laws and regulations, and as a result of his own request.

2. The Board notes that the applicant’s aptitude scores indicate that he was an intelligent soldier, who elected to request separation, rather than be tried by court-martial. He has provided no evidence that he ever raised the issue of mistreatment in Vietnam as a basis for his conduct, which ultimately led to his voluntary request for separation. The Board also notes that he did not raise that issue during his personal hearing before the Army Discharge Review Board in 1979.

3. While the Board cannot explain the absence of documents associated with the applicant’s service in Vietnam, the Board does note that it is not unusual for such records to be missing, considering the numbers of individuals who were rotating into and out of Vietnam on any given day. The applicant has not provided any evidence, beyond his self-authored statements that documents associated with his Vietnam service were destroyed or classified in some sort of cover-up. The evidence, which is available, tends to support a conclusion that the applicant’s suspended confinement was likely vacated while he was in Vietnam because of drug use, and not because of a conspiracy to make him a scapegoat by members of his chain of command for a friendly fire incident.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of his request. His contention that he should be medically discharged or retired is not supported by any evidence in his available record, nor provided by him.





5. There is no evidence, and the applicant has not provided any, which confirms he had any medically unfitting disability which required physical disability processing or that such medical conditions were the basis for the charges which ultimately led to his separation for the good of the service in lieu of trial by court-martial. Therefore, there is no basis for physical disability retirement or separation.

6. 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.

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

__GJW__ __KAH __ __RLD __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087254
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030731
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.	108.00
2.
3.
4.
5.
6.