MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 1 November 2001
         DOCKET NUMBER: AR2001062406

         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. Judy Blanchard-Miller		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Curtis L. Greenway		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 be upgraded to an honorable discharge.

APPLICANT STATES: In effect, that his rights were violated. The punishment that he received was much too harsh. His punishment was worse than most people get for the same offense. He believes, that he should have been given a medical discharge because he was never medically qualified to serve. The applicant states that he has Sickle Cell Anemia. No supporting evidence was submitted with application.

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

On 31 July 1975, the applicant enlisted in the Regular Army for 4 years. He completed the required training and was awarded military occupational specialty 11B10 (Infantryman). The highest grade he achieved was pay grade E-3.

Between February 1976 and July 1977, the applicant accepted five nonjudicial punishments under Article 15, Uniform Code of Military Justice, for two occasions of being disrespectful, in language to his superior noncommissioned officer, for two occasions of wrongful use of reproachful words and gestures and for disorderly conduct. His punishment included forfeitures, a verbal reprimand, extra duty, and a reduction to pay grade E-1.

The applicant’s record also indicates, that he had been the subject of two separate elimination boards, by two different battalions. The boards apparently recommended further retention in service. However, the particulars are missing from his files.

The applicant’s record indicates that court-martial charges were originally preferred against him on 21 September 1977. However, the paperwork was returned to the battalion for additional information and in the interim between original submission, the applicant apparently committed another offense. Accordingly, on the resubmission of charges by his headquarters, additional charges were preferred against the applicant.

On 12 October 1977, courts-martial charges were preferred against the applicant of two specifications of disobeying a lawful order, of intentionally missing a movement of flight, failure to go at the time prescribed to his appointed place of duty and of being disrespect in deportment toward a superior commissioned officer.

On 2 November 1972, after consulting with legal counsel the applicant voluntarily without any coercion requested a discharge under the provisions of Army

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Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. The applicant acknowledged, that he understood the elements of the offenses charged. The applicant waived further rehabilitation and was advised of the effects of a discharge under other than honorable conditions. He acknowledged that he understood, that he might be deprived of many or all Army and Veterans Administration benefits. He was afforded the opportunity to submit statements in his behalf. The applicant stated in effect, that he wanted to be released from the Army rather than defend himself at a court-martial. He further stated, that the primary reason he wanted to be discharged was his family, his love for them and their need of his support. Additionally, he stated that he was treated very poorly when he arrived at the Pohakuloa Training Area after being retained in the Army by a board of officers at a Chapter 13 elimination board. After getting off the plane he was placed in handcuffs and transported to the base camp. He felted that the treatment he received was illegal and a violation of Article 55, UCMJ, which prohibits cruel and unusual punishment. He believed, that the treatment he received had a drastic effect on him, because he had never been treated that way in his life. For those reasons he respectfully requested that he be released from the Army under the provisions of chapter 10.

The applicant’s record indicated that on 3 November 1977, he was scheduled for a separation physical examination and a mental hygiene consultation. The results of the examinations were to be delivered to the Staff Judge Advocate upon completion of the examinations. However, the applicant’s medical record, as well as the results of the physical and mental examination are missing from his files.

On 4 November 1977, the Battalion Commander addressed the applicant’s allegation of mistreatment. The Battalion Commander stated in effect, that the applicant was placed in handcuffs by military police because of the applicant’s inability to control his temper and also to assure his safe transport from the airfield to the base camp. He further stated, that the time and resources devoted to make the applicant a productive member of the United States Army was disproportionate to the contributions made by the applicant. The applicant’s established pattern of behavior was such that he would continue to be involved in incidents detrimental to discipline and order. The Battalion Commander recommended approval of the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10.

On 14 November 1977, the Commanding General approved the applicant’s request for discharge, reduced the applicant to the lowest enlisted grade and directed the issuance of a Discharge Certificate Under Other Than Honorable Conditions. On 22 November 1977, the applicant was discharged, in pay grade

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E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of service with a discharge UOTHC. He completed 2 years, 3 months and
22 days of creditable 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 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.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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, duress or that his rights were violated in any way.

3. The applicant alleges, that while in the military he had Sickle Cell Anemia and therefore, should have been given a medical discharge. The Board has noted the contentions of the applicant. However, they are not supported by either evidence submitted with the application or evidence in the available record.

4. Therefore, in the absence of medical evidence and the fact that the applicant did not supply any medical evidence to show that he then and now has Sickle Cell Anemia. It is presumed that the type of discharge directed and the reasons therefore were and still is appropriate considering all the facts of the case.

5. In view of the foregoing, there is no basis for granting the applicant’s requests.


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

__wtm___ __aao___ __clg___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062406
SUFFIX
RECON
DATE BOARDED	20011101
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19771122
DISCHARGE AUTHORITY	AR635-200, chapter10. . . . .
DISCHARGE REASON	A71.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.7100
2.
3.
4.
5.
6.