MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 March 2001
         DOCKET NUMBER: AR2001053079

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Roger W. Able		Chairperson
Mr. Allen L. Raub		Member
Ms. Gail J. Wire		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 discharge under other than honorable conditions (UOTHC) be upgraded to general.

APPLICANT STATES: That he believes the recommendation for a discharge UOTHC was made without reference to his past medical and psychological history. His learning disabilities were such that he was unfit for military service and should not have been accepted. After leaving the service, he held many jobs but none that really interested him until he became a professional truck driver. He drove a tractor-trailer for several years until about two years ago when he lost his license as a result of minor motor vehicle violations. Supporting evidence is as listed on the attachment to the DD Form 149.

COUNSEL CONTENDS: That he has known the applicant and his family for the past 35 years. He knows that the applicant has had learning disabilities since
childhood. The applicant early developed a pattern of avoiding problems by frequent absences and rejection of authority. This resulted in his referral to a school for problem children and further commitment to another school. He was deemed to have a classic learning disability and a tendency to express his feelings through impulsive and troublesome actions. He was discharged as having improved sufficiently to be enrolled in a classroom for learning-disabled students. The military should have been aware of his previous history. A profile examination during the enlistment process would easily have recognized that a referral to one school for problem children and subsequent commitment to another raises a red flag. His file contains no record of any physical or psychiatric examination after enlistment where his problems would have been diagnosed and appropriate action taken. Although he requested his discharge, he was a compulsive, immature, not too intelligent young man who was not fully aware of the consequences. The ignominy of his discharge has followed him in places he never dreamed of. After leaving the military he tried different jobs until he became a truck driver. He lost his license recently because of a series of motor vehicle violations incurred driving a “gypsy” tractor-trailer truck on unscheduled routes. There is no question that his unfavorable experience in the service, and subsequent results, have had a serious effect on his life.

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

He was born on 12 May 1953. He completed 2 years of high school. He completed his enlistment physical examination on 26 October 1972. His Report of Medical Examination, SF Form 88, is checked “no” in the blocks “Have you been refused employment or been unable to hold a job or stay in school because of…other medical reasons…?” and “Have you ever been treated for a mental condition…?” He enlisted in the Regular Army on 31 October 1972. His Armed Forces Qualification Test (AFQT) score was 46, category III. His General/Technical (GT) test score was 96.

The applicant first went absent without leave (AWOL) from 22 November 1972 – 10 December 1972, again from 5 – 31 January 1973, and again from 9 March – 5 April 1973.

On an unknown date, action was initiated to separate the applicant under the provisions of Army Regulation 635-200, chapter 13. The paperwork is not annotated whether this was to be for unfitness or unsuitability.

On 27 April 1973, court-martial charges were preferred against the applicant. This charge sheet is incomplete.

On 17 May 1973, the applicant completed a separation physical examination and was found qualified for separation. On this date a mental status evaluation was completed. He was found to have no significant mental illness, to be mentally responsible, to be able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

On 21 September 1973, court-martial charges were again preferred against the applicant charging him with AWOL from 17 May – 20 September 1973.

On 17 October 1973, another separation physical examination was initiated. The applicant’s history of nervous conditions was noted and he was referred to Mental Hygiene Consultation Service for evaluation. The SF Form 88 is annotated “Patient does not desire further evaluation and/or treatment. WAIVER signed and attached.” The waiver is available.

On 14 November 1973, court-martial charges were again preferred against the applicant charging him with AWOL from 24 October – 12 November 1973 in addition to AWOL from 17 May – 20 September 1973.

On 4 December 1973, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 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. He further stated “I did not want this type of discharge. I was trying to process a (sic) unsuitability but it is taking to (sic) long and I cannot stand being here.”

On 3 February 1974, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 25 February 1974, the applicant was discharged, with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial. He had completed 8 months and 16 days of creditable active service and had 219 days of 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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. A discharge under other than honorable conditions is normally considered appropriate.

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. 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. There is no indication that the request was made under coercion or duress. There is no indication that he was incapable of understanding the consequences. He had received a mental status evaluation and was found to have no significant mental illness and to be able to distinguish right from wrong and to adhere to the right and to have the mental capacity to understand and participate in the proceedings.

3. The Board notes the applicant’s educational history; however documentation provided states that he was discharged from the schools for problem children as having improved sufficiently to be enrolled in a regular classroom albeit for learning-disabled students. When he processed for enlistment, he was given all the standard tests every other enlistee was given. Nothing was indicated that would “raise a red flag.” His GT tested at 96, rated as average or normal. His AFQT tested at 46, category III, rated as average. He made no mention on his SF Form 88 that he had had school problems or that he had been treated for any mental condition. When he made his prior history known, he was offered the opportunity for further treatment and turned it down.

4. 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

__rwa___ __alr___ __gjw___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001053079
SUFFIX
RECON
DATE BOARDED	20010327
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19740225
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.