MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 April 2002
         DOCKET NUMBER: AR2001064790

         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:

Ms. Irene N. Wheelwright		Chairperson
Ms. Melinda M. Darby		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)

---

APPLICANT REQUESTS: In effect, that her discharge be voided and that she be reinstated to active duty in the pay grade of E-5.

APPLICANT STATES: In effect, that her command discharged her based on their personal feelings rather than the facts. As a result, she was unjustly reduced in grade and was discharged from the service. In support of her application she submits a memorandum for record explaining her position and provides additional supporting documents in the form of police reports, medical documents and statements relating to her situation at the time.

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

She initially enlisted on 10 September 1991 and served until she was honorably released from active duty in the pay grade of E-4 on 12 July 1995, due to reduction in force. She had served 3 years, 10 months and 3 days of total active service.

She again enlisted in Phoenix, Arizona, on 17 January 1997, for a period of 4 years, training as a microwave system operator – repairer, and assignment to Fort Drum, New York. She was promoted to the pay grade of E-5 on 1 August 1998.

On 26 October 2000, while stationed in the Netherlands, the applicant had a physical altercation with the wife of a soldier she (the applicant) was having a sexual affair with and involved the soldier’s wife assaulting the applicant. At the time, the applicant was allegedly pregnant with the soldier’s child and had a miscarriage the next day. Both she (the applicant) and the soldier subsequently admitted to the adulterous affair.

On 6 February 2001, nonjudicial punishment (NJP) was imposed against the applicant for wrongfully engaging in sexual intercourse with a married man (a staff sergeant) during the period of 30 August to 30 October 2000. Her punishment consisted of a reduction to the pay grade of E-4 (suspended until 4 August 2001), a forfeiture of pay and extra duty. She did not appeal the punishment and the imposing commander directed that the Record of Proceedings of NJP (DA Form 2627) be filed on the restricted fiche of her Official Military Personnel File (OMPF).

On 9 May 2001, the applicant was involved in an automobile accident in which she drove into a light pole and suffered a concussion. She was transported to a hospital and was cited for failure to maintain control of a vehicle.

She then departed the hospital without being released, after being told she was being transferred to a psychiatric section for evaluation and her commander was notified. He in turn notified the military police and they were at her quarters when she arrived. When the commander requested that the matter be discussed inside of the applicant’s quarters, she became defiant and sat on the ground. She later assaulted the commissioned officer, was restrained and taken to a medical facility for evaluation.

On 5 June 2001, the imposing commander vacated the suspended punishment and reduced her to the pay grade of E-4. He cited as the basis for his action that the applicant was disrespectful towards a commissioned officer, she displayed disorderly conduct of a nature to bring discredit on the Armed Forces and for failure to maintain control of a vehicle which resulted in a traffic accident.

The facts and circumstances surrounding the administrative discharge are not present in the available records. However, her records do contain a duly constituted report of separation (DD Form 214) signed by the applicant. It shows that she was honorably discharged on 2 August 2001, under the provisions of Army Regulation 635-200, paragraph 5-18, due to a physical condition not a disability. She had served 4 years, 6 months and 16 days of active service during her current enlistment and was authorized one-half separation pay.

Army Regulation 635-200 serves as the authority for enlisted separation. Paragraph 5-18 (Other Designated Physical or Mental Conditions) provides that commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to physical disability (AR 635-40), and excluding conditions appropriate for separation processing under paragraph 5-11 or 5-13, that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to, chronic airsickness or seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the soldier’s ability to effectively perform military duties is significantly impaired. When a commander determines that a soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the soldier for a medical examination and/or mental status evaluation in accordance with Army Regulation 40-501. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.

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. Inasmuch as the Board does not have the benefit of reviewing the facts and circumstances surrounding the applicant’s administrative discharge, the Board must presume, in the absence of evidence to the contrary, that her discharge was accomplished in accordance with the applicable regulations, with no violations of any of her rights.

2. Accordingly, her discharge is commensurate with the available facts in her case and her overall record of service.

3. While the applicant has provided some documents to support her application, without having the benefit of reviewing the administrative discharge proceedings in her case, they serve only to represent her perspective and does not serve as a basis to show that her discharge was in error or unjust.

4. 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.

5. 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

___md __ __jm ____ ___inw__ DENY APPLICATION

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

---

INDEX

CASE ID	AR2001064790
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/04/16
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2001/08/02
DISCHARGE AUTHORITY	AR635-200/ 5-18
DISCHARGE REASON	Phy condition not a disability
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 360	144.0000/adm disc
2.
3.
4.
5.
6.