MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 August 2001
         DOCKET NUMBER: AR2001053202

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Joe R. Schroeder		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 be upgraded to a general discharge.

APPLICANT STATES: That at the time he was in the military, he was being treated for a nervous muscle condition. He goes on to state that the doctor who was treating him did not understand what was wrong with him and was prescribing muscle relaxers and valium. Come to find out, he was diagnosed with Muscular Dystrophy in 1988 and he contends that he should have been medically discharged instead of the discharge he received.

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

He enlisted in Chicago, Illinois on 8 April 1980 for a period of 3 years, training as an infantryman and assignment to the 2d Armored Division. He completed his training and was transferred to the 2d Armored Division at Fort Hood, Texas on 19 August 1980.

On 6 February 1981 he was convicted by a summary court-martial of being absent without leave (AWOL) from 16 January 1981 to 3 February 1981. He was sentenced to confinement at hard labor for 25 days, reduction to the pay grade of E-1 and a forfeiture of pay.

On 5 May 1981 he again went AWOL and he remained absent until he was apprehended by civil authorities in Waco, Texas on 18 May 1992 (11 years later) and was returned to military control at Fort Hood.

Although the specific facts and circumstances surrounding his discharge are not present in the available records, his records do contain a duly constituted report of separation (DD Form 214) which shows that he was discharged under other than honorable conditions on 22 May 1992 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 1 month, and 20 days of total active service and had 4067 days of lost time due to AWOL and confinement. At the time of separation the applicant declined a separation physical in writing.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge in June 2001. He contended at that time, in effect, that he was a good soldier until he started taking the medication he was being prescribed and was unable to function properly. At that point his chain of command started to disregard his condition and required him to perform as usual. At one point, because of the medication he was taking, he fell asleep while guarding his unit’s equipment and when his unit returned, he was asleep and the equipment was on fire. As a result, he was court-martialed for falling asleep and he also received nonjudicial punishment. He further contended that he has since been diagnosed with Muscular Dystrophy and that at the time he was unable to function properly and left the service because he could not perform as was expected of him. However, had his illness been properly diagnosed, he would have been medically discharged and would be eligible for benefits. The ADRB determined that he had been properly discharged and voted unanimously to deny his request for an upgrade of his discharge on 25 July 2001.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Such a request is strictly voluntary on the part of the person who has been charged and they must indicate that they have been briefed on the consequences of accepting a discharge under other than honorable conditions and must also indicate that they have not been coerced by anyone to request such a discharge. A discharge under other than honorable conditions is normally considered appropriate and there are no provisions for an automatic upgrade of such a discharge. The regulation also provides, in effect, that a separation under this chapter is not precluded if an individual is undergoing separation for medical/physical disability and that a separation for misconduct will normally take precedence over medical separations.

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 the absence of evidence to the contrary, it must be presumed that 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.

2. Accordingly, it must be presumed that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. A request for discharge under Army Regulation 635-200, chapter 10, in lieu of trial by court-martial requires a voluntary request on the part of the individual concerned. Therefore, it appears that he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date.

4. The applicant’s contentions have been noted by the Board; however, they are not supported by the evidence submitted with his application or the evidence of record. Accordingly, they are not sufficiently mitigating when compared to his extensive absences and his otherwise undistinguished record of service during a relatively short period.

5. 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.

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

__jrs ____ __reb___ __wtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001053202
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/08/14
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1992/05/22
DISCHARGE AUTHORITY	AR635-200/ch10
DISCHARGE REASON	Gd of svc
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/a70.00
2.
3.
4.
5.
6.