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Decision Text

ARMY | BCMR | CY1997 | 9709364
Original file (9709364.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, that he be treated fairly and his discharge be upgraded.
APPLICANT STATES : In effect, that he had spinal meningitis and almost lost his life while serving in the Army.

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

The applicant entered the Regular Army on 26 February 1980 for a period of 4 years. At the time of his enlistment the applicant had completed 1 year, 3 months, and 23 days of service in the United States Army Reserve. Additionally, on 14 May 1979, upon completion of his initial active duty for training, he received a DD Form 214 (Report of Separation From Active Duty) for 5 months, and 25 days of honorable active duty service.

The applicant's record is incomplete and void of any significant acts of achievement or service meriting special recognition and or evidence of disciplinary infractions prior to the incident for which separation action was accomplished.

The evidence of record indicates that on 31 July 1980 charges were preferred against the applicant for violation of Article 109 (willfully and wrongfully damaging the property of another in the amount of $817) of the UCMJ.

The record also contains documented evidence that the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10 of AR 635-200. This request was made after the applicant had been advised by counsel of the basis for his contemplated trial by court-martial, the maximum permissible punishment, and of the possible effects of a discharge under other than honorable conditions. The applicant also attested to the fact that he fully understood he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration and that he may be deprived of veterans benefits under state and federal law.


On 25 September 1980 the appropriate authority approved the applicant's request for discharge, for the good of the service-in lieu of trial by court martial, and directed the applicant be discharged under other than honorable conditions. Accordingly on 3 October 1980 the applicant was discharged after completing 7 months, and 8 days of active military service.

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 are 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 for soldiers separating under this chapter.

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. The Board considered all the evidence of record to include the applicant's physical condition at the time of his service and found no evidence that he almost lost his life. Additionally, the Board did not find the applicant's medical problems (spinal meningitis) sufficiently mitigating to warrant an upgrade of his discharge. The applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge and after consulting with legal counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offense under the UCMJ.

2. The discharge proceedings were conducted in accordance with law and regulation applicable at the time. The reason for and the character of the discharge are commensurate with the applicant's overall record of military service.

3. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4. 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.

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

DENY APPLICATION




                                                      Karl F. Schneider
                                                      Acting Director

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