MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 6 November 2003
                  DOCKET NUMBER: AR2003088733

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Mae M. Bullock		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 honorable or general.

APPLICANT STATES: In effect, that his drug use led to his discharge. He also contends that the Army failed to offer any treatment for his drug use before he was discharged. In support of his application, he submits a copy of his DD Form 214 (Report of Transfer or Discharge).

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

The applicant enlisted on 27 August 1969 for a period of 3 years. He successfully completed basic combat training, advanced individual training and basic airborne training. He was transferred to Vietnam on 23 June 1970 for duty as a parachute rigger.

On 14 October 1970, while in Vietnam, the applicant was convicted by a special court-martial of violating a lawful general regulation by having in his possession one hypodermic syringe and six hypodermic needles and failing to obey a lawful general order by being in an off limits area. He was sentenced to forfeit $75 pay per month for 4 months, to be confined at hard labor for 4 months, and to be reduced to E-1. On 24 October 1970, the convening authority approved the sentence but suspended the sentence to confinement for 4 months. On
20 December 1970, the unexecuted portion of the sentence to confinement was remitted.

On 17 February 1971, while in Vietnam, charges were preferred against the applicant for being in an off limits area and possessing 20 tablets of a habit forming narcotic drug. Trial by special court-martial was recommended.

On 19 February 1971, 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. He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of the Veterans Affairs and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he may encounter substantial prejudice in civilian life because of an undesirable discharge. Additionally, he elected not to submit a statement in his own behalf.





The applicant underwent a separation physical examination on 20 February 1971 and was found qualified for retention under the provisions of Army Regulation
40-501 for separation under the provisions of Army Regulation 635-200. This medical record also shows that the applicant was diagnosed with a passive-aggressive personality manifested by a former heroin addiction which existed prior to service.

On 22 February 1971, the applicant underwent a psychiatric evaluation and was found to have no specific psychiatric disorder. The applicant reported a history of marijuana use dating back to 1969.

The intermediate commanders recommended that the applicant’s request for discharge be approved and that he be furnished an undesirable discharge.

On 3 March 1971, the separation authority approved the applicant’s request for discharge and directed that he be issued an undesirable discharge.

On 7 March 1971, the applicant was transferred back to the United States.

The applicant was discharged with an undesirable discharge on 8 March 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served1 year, 5 months and 11 days of total active service and had 30 days of lost time due to AWOL and confinement.

There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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. At the time, an undesirable discharge was normally considered appropriate.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.



Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

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 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.

2. Medical evidence of record also shows the applicant was found qualified for retention under the provisions of Army Regulation 40-501 for separation under the provisions of Army Regulation 635-200. Medical evidence of record also shows the applicant reported pre-service drug abuse. If the applicant believed that he had a drug abuse problem prior to his voluntary request for discharge then he could have sought treatment through his chain of command.

3. The applicant’s record of service included one special court-martial conviction and 30 days of lost time and for that reason his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. His service was also not satisfactory. Therefore, the applicant is not entitled to an honorable discharge or a general discharge.

4. 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.

5. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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

SK____ RJW_____ MMB____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088733
SUFFIX
RECON
DATE BOARDED	20031106
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	19710308
DISCHARGE AUTHORITY	AR 635-200 chapter 10
DISCHARGE REASON	For the good of the service
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.