MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:   
	


	BOARD DATE:           19 November 1998                   
	DOCKET NUMBER:   AC96-10594

	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.



	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)

APPLICANT REQUESTS:  The applicant submits two applications.  In the first one he requests that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable and that the reason for separation be changed.  In his second application he requests that the narrative reason for separation and his reentry code be changed.  (In 1994, he applied to have his reentry code, narrative reason for separation and separation code changed.)

APPLICANT STATES:  He had Rocky Mountain Spotted Fever when he was discharged.  He is also suing the Army for $200,000.

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

After having 3 years prior enlisted service, he reenlisted in the Regular Army on 10 June 1985.  There is no evidence of a record of disciplinary problems until the action leading to his discharge.

On 7 December 1989, court-martial charges were preferred against the applicant charging him with three specifications of willfully and unlawfully altering a public record and one each specification of wrongfully wearing on his uniform the insignia of the grade of a Specialist E-4, making a false official statement with intent to deceive, and failing to go to his appointed place of duty.  (It is noted that there is no evidence of his reduction to Private First Class in his records.  He was promoted to Specialist E-4 on 1 February 1986, several orders dated 1988 show his rank as Specialist E-4 and his Personnel Qualification Record dated     8 December 1989 shows his rank as Specialist E-4 but the typed name and grade line next to his signature line on the charge sheet does show his grade as “PFC.”)

On 7 December 1989, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  No statement in his own behalf is included with his request.

His separation physical is not available.

On 11 December 1989, the appropriate authority approved his request and directed he receive a discharge UOTHC.

On 21 December 1989, the applicant was discharged, with a discharge UOTHC, in pay grade E-1 under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service.  He had completed 7 years, 6 months and 12 days of creditable active service and had no lost time. 

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.

On 7 June 1993, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.  

On 27 August 1993, the applicant wrote to his Congressman concerning the ADRB’s decision.  In his letter, he mentions he was on a field exercise sometime in October/November 1989.  When he returned, his right ankle swelled up.  The swelling went away but within a few days he developed a low grade fever and he began acting in an abnormal manner for which he was referred to a psychiatrist.  He goes on to state it was the beginning of his falling ill with Rocky Mountain Spotted Fever which, in effect, was what caused him to behave abnormally.

On 17 March 1995, this Board denied the applicant’s request to change the reason for his discharge, the reentry code and the separation code.

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 the aforementioned requirement.

2.  He has submitted no newly-discovered relevant evidence that would warrant reconsideration of the issues of his narrative reason for separation or his reentry code.

3.  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, after appropriate and proper consultation with a military lawyer, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  The character of the discharge is commensurate with the seriousness of the offenses charged.

4.  The applicant claims, in effect, that he developed Rocky Mountain Spotted Fever during a field exercise in October/November 1989 and that is what caused his abnormal behavior leading to the incidents that led to his discharge.  However, two of the court-martial specifications refer to incidents occurring in September 1989.

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

FNE_____  TAP_____  BJE_____  DENY APPLICATION




						Loren G. Harrell
						Director