MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 February 2002
         DOCKET NUMBER: AR2001063689

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Ms. Celia L. Adolphi		Member
Mr. John T. Meixell		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 honorable.

APPLICANT STATES: That he volunteered for enlistment in 1967-1968, that he went to Chicago for a physical examination and was found unsuitable due to his criminal record and back problems. He contends that eight months later he was drafted and found suitable for service. He goes on to state that in 1970 he was hospitalized for partial paralysis due to carrying excess weight on his back during training. He went absent without leave (AWOL) after he returned to duty, that his court-martial was overturned and that he was offered a discharge not knowing it was under other than honorable conditions.

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

The applicant was inducted on 19 November 1970. Item 13a (Convicted or Adjudicated of Crime Other Than Minor Traffic Violation) on the applicant’s DD Form 47 (Record of Induction) shows “YES” and the entry, “Burglary on January, 1964 at Pontiac, Illinois - Sentenced: 6 months at Vandalia. Theft on 28 Dec 1965 at Pontiac, Ill. 3-5 years at ISP, Pontiac, Illinois.” Item 15 (Previously Examined and not Acceptable) on the applicant’s DD Form 47 shows “NO”. Section III (Medical Determination) on his DD Form 47 shows his physical profile was 111111. The applicant’s Standard Form 89 (Report of Medical Examination), dated 16 June 1970, shows he was qualified for induction with a physical profile of 111111.

While in basic combat training, the applicant went AWOL on 8 February 1971 and returned to military control on 20 May 1971.

On 24 June 1971, the applicant was convicted by a special court-martial of being AWOL from 8 February 1971 to 20 May 1971. He was sentenced to forfeit $25 pay per month for 4 months and to be confined at hard labor for 4 months. On
2 July 1971, the convening authority approved the sentence.

On 20 July 1971, the findings of guilty and the sentence were set aside and authorization for a rehearing was granted.

Records show the applicant went AWOL from 26 August 1971 to 27 August 1971. He went AWOL again on 6 September 1971 and was apprehended by civil authorities and returned to military control on 13 October 1971.

On 19 October 1971, the applicant underwent a separation physical examination and was found qualified for separation. Standard Form 93 (Report of Medical History), dated 19 October 1971, shows the applicant answered “YES” to item
19 (Have you ever been a patient in any type of hospital?) and provided the entry, “MADIGAN GENERAL FT LEWIS BACK & SHOULDER PARTIALLY PARALYZED JAN – 71”. Item 25 (Physician’s summary and elaboration of all pertinent data (Physician shall comment on all positive answers in items
9 through 24. Physician may develop by interview any additional medical history he deems important, and record any significant findings here.) shows the entry, “Back & shoulder partially paralyzed.”

The applicant’s service personnel records contain an undated Certificate which states that the applicant’s medical and dental records could not be located.

Charges were preferred against the applicant on 22 October 1971 for the two AWOL periods and trial by special court-martial was recommended.

On 16 November 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he may 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 his rights and benefits as a veteran under both Federal and State law. He also acknowledged that he may encounter substantial prejudice in civilian life because of an undesirable discharge. Additionally, he elected to submit a statement in his own behalf. In summary, the applicant stated his reason for going AWOL was due to family and financial problems.

On 17 November 1971, the intermediate commanders concurred with the applicant’s request for discharge and recommended that he be furnished an undesirable discharge.

On 18 November 1971, the applicant was placed on excess leave until
14 December 1971. The applicant failed to report back on 14 December 1971; therefore, he was placed in an AWOL status.

On 23 December 1971, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

On 5 January 1972, while in an AWOL status, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 8 months and 12 days of total active service with 155 days lost time due to AWOL.

There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.

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. The Board considered the applicant’s contentions that he volunteered for enlistment in 1967-1968, that he went to Chicago for a physical examination and that he was found unsuitable due to his criminal record and back problems. However, there is no evidence of record available to the Board, and the applicant has provided no evidence, to support these contentions.

2. Evidence of record shows the applicant was inducted on 19 November 1970. Item 15 (Previously Examined and not Acceptable) on the applicant’s DD Form 47 (Record of Induction) shows “NO”. His physical profile at the time of his induction was 111111 and his criminal record is properly shown in item
13a (Convicted or Adjudicated of Crime Other Than Minor Traffic Violation) on his induction record.

3. The Board considered the applicant’s contention that in 1970 he was hospitalized for partial paralysis due to carrying excess weight on his back during training. However, there is no medical evidence of record available to the Board to support this contention.

4. The Board notes that the applicant’s Standard Form 93 (Report of Medical History), dated 19 October 1971, does show he answered “YES” to item
19 (Have you ever been a patient in any type of hospital?) and that the applicant provided the entry, “MADIGAN GENERAL FT LEWIS BACK & SHOULDER PARTIALLY PARALYZED JAN – 71”. Also, item 25 (Physician’s summary and elaboration of all pertinent data (Physician shall comment on all positive answers in items 9 through 24. Physician may develop by interview any additional medical history he deems important, and record any significant findings here.)) shows the entry, “Back & shoulder partially paralyzed.” However, there is no evidence of record available to the Board which shows the applicant was hospitalized for any medical condition during his enlistment.

5. The applicant’s contention that his court-martial was overturned is supported by the evidence of record. Evidence of record shows that the findings of guilty and the sentence of the applicant’s special court-martial were set aside and authorization for a rehearing was granted.

6. The applicant’s contention that he was offered a discharge not knowing it was under other than honorable conditions is not supported by the evidence of record. Evidence of record shows the applicant consulted with counsel on
16 November 1971, that he acknowledged that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate and that he voluntarily requested discharge for the good of the service.

7. 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.

8. The type of discharge directed and the reasons for separations were appropriate considering all the facts of the case.

9. The Board reviewed the applicant’s record of service during his current enlistment which included 155 days of lost time and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

10. 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.

11. 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____ CLA_____ JTM____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063689
SUFFIX
RECON
DATE BOARDED	20020228
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19720105
DISCHARGE AUTHORITY	AR 635-200 Chapter 10
DISCHARGE REASON	For the good of the service
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.