MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 July 2002
         DOCKET NUMBER: AR2001064698


         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. Antoinette Farley		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor		Chairperson
Mr. Richard T. Dunbar		Member
Mr. Kenneth W. Lapin		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         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: In essence, that his under other than honorable conditions (UOTHC) discharge be upgraded to general, under honorable.

APPLICANT STATES: In effect, his command violated his medical profile (P3) for an existing foot condition and denied his request to change his military occupational specialty (MOS) from 11B10 (Infantryman). He submits in support of his claim, a letter of explanation dated 15 October 2001; a Supply Disposition Form prepared by the Battalion Aid Station for exchange of footwear due to improperly sized boots; a copy of his Physical Profile Board Proceedings; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); three certificates for educational achievement and a notification form showing, no penal record from the Police Department in the Commonwealth of Puerto Rico, dated 20 August 2001. He also submits four sick slips, and a copy of a 1^st endorsement to his request for discharge for the Good of the Service. Since discharge, he has worked as a mechanic, policeman, and a correctional officer and, for the last 5 years, as a practical nurse in a correctional hospital.

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

The applicant enlisted on active duty for 3 years on 12 November 1981. He was trained in military occupational specialty (MOS) 11B10 (Infantryman).

On 22 February 1982, a physician assistant at the Battalion Aid Station, Fort Ord, California, authorized the issuance of combat boots to the applicant due to improperly sized footwear.

On 16 March 1982, the applicant was treated for pain in both ankles and returned to duty.

On 7 April 1982, the applicant was diagnosed with having flat feet. He was issued a permanent (P3) medical profile with the following assignment limitations, running at his own pace, no more than a quarter of a mile and only marching a mile, per day. Follow-up medical visits show that on 15 April 1982, he was treated for pain in both feet. He received medication refills and was returned to duty. The applicant’s sick slip noted, that he should receive a new MOS or a medical board for an Existed Prior to Service discharge. On 21 April 1982, he again was seen for foot pain, issued medication and returned to duty.

On 11 June 1982, the applicant was initially listed as being absent without leave (AWOL).

On 16 September 1983, he surrendered to military control at the Personnel Control Facility, Fort Buchanan, Puerto Rico.
On 20 September 1983, court-martial charges were preferred against the applicant
for being AWOL from 11 June through 18 October 1982 and from 19 October
1982 through 16 September 1983.

On 21 September 1983, the applicant consulted with counsel and voluntarily requested discharge under the provisions of chapter 10, Army Regulation
635-200, for the good of the service, in lieu of trial by court-martial. His request acknowledged that he was guilty as charged or of a lesser-included offense for which he could receive a punitive discharge.

During his interview, he stated that his being AWOL was due to a personal and medical problems. He believed his command had violated his P3 profile. He also stated that he strongly desired to end his affiliation with the service.

Further investigation by the command of his profile allegations could not be confirmed, although medical records show repeated trouble with his feet. He acknowledged that he understood the nature and consequences of the Under Other Than Honorable Condition (UOTHC) discharge that he might receive, including that he might lose some or all veteran benefits.

On 27 September 1983, the unit commander recommended approval of the applicant’s request for discharge and recommended that he receive a UOTHC discharge. On 6 October 1983 the intermediate commander concurred with the UOTHC discharge.

On 7 November 1983, the separation authority approved the applicant’s request and directed an UOTHC discharge with reduction to the lowest enlisted grade unless already serving in that grade.

On 22 November 1983, he was separated with a UOTHC discharge for the good of the service, in lieu of trial by court-martial, under the provision of chapter 10, Army Regulation 635-200. He completed 9 months and 6 days of creditable service and had 462 days of lost time due to AWOL.

On 25 November 1987, the Army Discharge Review Board denied his request for upgrade of his discharge.

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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

The Manual for Courts-Martial, Table of Maximum Punishments, shows that a
punitive discharge is authorized for any AWOL of more than 30 days.

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 applicant’s contention that his command violated his medical profile and denied his request to change his MOS is not supported by the available evidence of record. Furthermore, neither of these factors outweighs the serious nature of the offenses that led to the discharge; therefore, they are not sufficiently mitigating to warrant relief.

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. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3. 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.

4. In view of the foregoing, there is no basis for granting the applicant's request.

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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 _ __RTD __ __KWL__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064698
SUFFIX
RECON
DATE BOARDED	2002.07.25
TYPE OF DISCHARGE	UOTHC CH 10
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	For the good of the service
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	A100.00
2.	A144.33
3.
4.
5.
6.