IN THE CASE OF:	

		BOARD DATE:	  23 October 2008

		DOCKET NUMBER:  AR20080009620 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request that his discharge be upgraded to honorable or general under honorable conditions.

2.  The applicant states that he needs to be able to qualify for Department of Veterans Affairs (VA) medical benefits.  He has developed cancer.  He was never given an opportunity to rehabilitate from his drug problem.  He was a combat veteran and combat-related stress was evident.  No professional counseling was available on the front lines.

3.  The applicant provides a Disabled American Veterans Contact Brief; a VA Form 21-4138 (Statement in Support of Claim); a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative); a VA outpatient record, dated 19 May 2008; and two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel requests, in effect, that the applicant’s discharge be upgraded so he may receive medical help.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050015193 on 18 May 2006.

2.  The applicant enlisted in the Regular Army on 21 October 1969.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 62B (Engineer Equipment Repairman).  He was honorably discharged on 22 June 1970 and immediately reenlisted on  23 June 1970.

3.  The applicant arrived in Vietnam on 6 November 1971.  He was assigned to the 510th Engineer Company; to the 79th Maintenance Company; to the 576th Ordnance Company; and to Engineer Region MR-I, U. S. Army, Vietnam.

4.  In a letter from the Commander, Engineer Region MR-I, U. S. Army Vietnam, to the Commanding Officer, U. S. Army Drug Treatment Center, Vietnam, the Commander stated that on 4 July 1972 the applicant was detected as a user of narcotics by his own admission.  He reported he had used drugs due to being away from his wife too much.  He told the applicant he would be placed under the unit’s drug rehabilitation program with an E-6 remaining with him 24 hours a day until he was admitted to the Drug treatment Center.  He was admitted to the drug treatment center on 10 July 1972 and was returned to his unit on 24 July 1972.  Upon his return, he stated that the drug treatment center was nothing more than a jail and the drug rehabilitation treatment was not effective.  The commander stated the applicant was informed he would be going though an 8-week follow up program and if detected twice more he could be subject to separation.  The applicant then tested positive for illegal drugs on 6 July and again on 28 July 1972, but it was conceivable that rehabilitation outside of Vietnam would be successful.

5.  The applicant departed Vietnam on 11 August 1972.  His discharge packet indicated he was assigned to the Medical Holding Company at Fort Campbell, KY for further rehabilitation.  

6.  On 19 October 1972, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 11 September through 12 October 1972.

7.  On 28 November 1972, the applicant accepted nonjudicial punishment under Article 14, Uniform Code of Military Justice, for being AWOL from 17 November through 22 November 1972.


8.  On 23 February 1973, charges were preferred against the applicant for being AWOL from 20 December 1972 through 10 February 1973.

9.  On 2 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.  He indicated in his request that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  

10.  The applicant elected to submit a statement in his own behalf.  In this statement, he indicated that he no longer felt that he could do well in the Army because his nerves were bad, and his wife had hardships due to the Army and had left him as a result.  He also stated that he had been on drugs for over the past couple of years and he felt that it would help him more to be discharged from the Army. 

11.  On 26 March 1973, the separation authority approved the applicant's request for discharge and directed he be issued an Undesirable Discharge Certificate.

12.  On 6 April 1973, the applicant was discharged, under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with an undesirable discharge and a characterization of service of under other than honorable.  He had completed 2 years, 6 months, and 18 days of creditable active service and had 88 days of lost time for the period under review.  

13.  On 11 September 1975, the Army Discharge Review Board (ADRB) denied the applicant’s request for a discharge upgrade.  In his application to the ADRB, the applicant stated that he had a drug problem, was emotionally unstable, and could not cope with life after his discharge.  In September 1973, he was charged with arson and spent seven months in jail.    

14.  With his current application, the applicant provided a VA Form 21-4138 that indicates he has been diagnosed with a malignant neoplasm cancer secondary to herbicide exposure (Agent Orange).

15.  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 submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, 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.

16.  Army Regulation 635-200, paragraph 3-7a, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

17.  Army Regulation 635-200, paragraph 3-7b, 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 AND CONCLUSIONS:

1.  The applicant contended that he was never given an opportunity to rehabilitate from his drug problem.  However, the evidence of record shows that he was given an opportunity to rehabilitate in Vietnam, even if it appears he did not like the program he was sent to.  He was given another chance at Fort Campbell, KY.  In addition, it is noted that in his statement with his March 1973 request for discharge he stated that he had been on drugs for over the past couple of years.  That would have meant he began using drugs prior to arriving in Vietnam; therefore, the stresses of whatever combat he was in would not have been the origin of his drug use.

2.  The applicant’s current medical problems are certainly regrettable; however, they form an insufficient basis on which to upgrade his discharge.  The applicant should continue to work with the VA to seek a waiver to obtain the medical benefits he needs for conditions that may have had their origins in his service in Vietnam prior to the misconduct that ultimately led to his undesirable discharge.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX_____  ____XX____  ____XX____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20050015193 dated 18 May 2006.




      ______XXXX_ _   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080009620





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ABCMR Record of Proceedings (cont)                                         AR20080009620



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