MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 October 2001
         DOCKET NUMBER: AR2001060941

         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. Raymond V. O’Connor, Jr.		Chairperson
Ms. Regan K. Smith		Member
Mr. Donald P. Hupman, Jr.		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 a general discharge under honorable conditions or changed to a medical discharge.

APPLICANT STATES: That he was drafted twice. They would not take him the first time because he was out on bail. While at basic training he went home for a few days, went on a drunk, and was about three days late in returning. While in advanced individual training (AIT), he shook and could not talk on the phone to people he did not know. It would cause tremors. A psychiatrist or psychologist changed his military occupational specialty (MOS) and he was sent to Fort Lee, VA. After AIT he went on a week’s leave and was due to report to Fort Knox, KY but he stayed intoxicated for about 8 ½ months. Due to his condition they wanted to put him on medical observation. He was given nerve pills due to his tremors. He was advised that if he stayed 60 days he would probably get a medical discharge. He was released from the stockade after 23 days to go home. He was given an undesirable discharge. The tremors were not related to alcohol and they were medically related. They knew he had an alcohol problem when he was drafted. They knew his mother had a nervous condition. He provides no supporting evidence.

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

He was inducted into the Army on 14 October 1970. On his pre-induction physical he had indicated that he had an excessive drinking habit and had nervous trouble. He completed basic combat training and was sent to Fort Lewis, WA for AIT 11C (Infantry Indirect Fire Crewman). He was released from training on 17 February 1971 for unknown reasons. He was assigned to Fort Lee, VA on 17 March 1971 for AIT 76P (Repair Parts Specialist). He was advanced to Private First Class, E-3 on 15 April 1971. Upon completion of AIT, he was reassigned to the U. S. Army Overseas Replacement Station, Oakland Army Base, Oakland, CA for further assignment to the Vietnam Transient Detachment.

On 29 June 1971, the applicant departed absent without leave (AWOL). He was apprehended by civil authorities and returned to military control on 2 March 1972.
A Disposition Form, DA Form 2496-1, dated 6 March 1972 indicates “EM states he has bad nerves and stutters. This caused problems with SGTs. EM has seen head shrink. EM is scared of crowds. EM is undecided on intensions (sic) but wishes discharge – any form.”

The court-martial charges and the discharge proceedings packet are not available. An Army Discharge Review Board (ADRB) brief dated 19 May 1976 indicates the applicant requested a discharge in lieu of court-martial on 13 March 1972, that he made no statement in his own behalf, that he understood the consequences of a general discharge or a discharge UOTHC, and that his request was approved by the appropriate authority on 21 March 1972. The brief indicated the applicant had stated there was a psychiatric report in his file; however, the ADRB found no indication of any history of mental disorder in his file.

On 28 March 1972, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC. He had completed 9 months and 12 days of creditable active service and had 247 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 UOTHC is normally considered appropriate.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. In pertinent part, it states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

On 9 September 1976, the ADRB notified the applicant it had denied his request for an upgraded discharge.

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 and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2. There is no evidence of record and the applicant provides none to show that he had a medical condition that rendered him unfit for military service. From his statement, it would appear that any medical condition he had existed prior to his entry in the service and was not incurred or aggravated while in the service. On the contrary, he was advanced to E-3 while still in AIT, indicating he had the capability to perform his duties. He departed AWOL prior to his first permanent duty assignment.

3. Due to the excessive length of his AWOL and the lack of any evidence to show a medical condition resulted in his departing AWOL, the type of discharge given was and still is appropriate.

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

__rvo___ __rks___ __dph___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060941
SUFFIX
RECON
DATE BOARDED	20011016
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19720328
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.