MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 July 2002
         DOCKET NUMBER: AR2002067039

         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. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Ms. Gail J. Wire		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 under other than honorable conditions (UOTHC) discharge be changed to a medical discharge.

APPLICANT STATES: That he was never court-martialed, but his DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects that his discharge was a result of trial by court-martial. He also states that while he was in the Army, he constantly sought medical help and he is now receiving it from a psychiatrist at the Veterans Administration (VA) Hospital, St. Louis, Missouri.

In support of his application, the applicant submitted legal and psychiatric documents.

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

He enlisted in the Regular Army for a period of 3 years on 6 October 1977. He enlisted for the Station of Choice Enlistment Option - Fort Ord, California, and for training in military occupational specialty (MOS) 12B, Combat Engineer. Following completion of One Station Unit Training (OSUT), at Fort Leonard Wood, Missouri, the applicant was awarded MOS 12B and was assigned to Fort Ord, California, as his first permanent duty assignment. He arrived at Fort Ord in January 1978.

On 6 February 1979, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 9 January 1979 through 15 January 1979. His punishment consisted of reduction to private /E-1, forfeiture of $100.00 pay per month for 2 months, and 14 days' extra duty.

The applicant went AWOL again on 17 February 1979 and remained absent through 12 March 1979 when he returned to military control at the Personnel Control Facility (PCF), Fort Sill, Oklahoma. On 15 March 1979, he was given a mental status examination and found to have no mental defects. On 16 March 1979, he accepted NJP for being AWOL from 9 January through 18 January 1979 and 17 February 1979 through 12 March 1979 [Fort Sill PCF included the first period of AWOL for which he was punished on 6 February 1979]. His punishment consisted of forfeiture of $32.00 pay per month for 1 month, and 14 days' extra duty and restriction (suspended for 14 days). He was then reassigned to Fort Stewart, Georgia, in April 1979.

On 24 April 1979, the applicant accepted NJP for being disrespectful in language toward a superior noncommissioned officer. His punishment consisted of reduction to private/E-1 and forfeiture of $60.00 pay per month for 1 month (suspended for 1 month).

On 2 July 1979, the applicant accepted NJP for being disrespectful in language toward a superior commissioned officer and wrongfully disobeying a superior commissioned officer. His punishment consisted of forfeiture of $95.00 pay per month for 1 month and 14 days' extra duty.

On 16 July 1979, the applicant departed his unit at Fort Stewart in an AWOL status and remained absent until he surrendered to military authorities at Fort Leonard Wood on 21 August 1979. He was transferred to the PCF at Fort Sill.

On 23 August 1979, a mental status evaluation and a physical examination cleared the applicant for separation. No abnormalities were noted and the applicant authored a statement on his SF 93 (Report of Medical History) that he was in good health.

On 28 August 1979, court-martial charges were preferred against the applicant for being AWOL from 16 July through 21 August 1979. On the same date, after consulting with counsel about his rights, the applicant 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.

On 24 September 1979, the appropriate authority approved the applicant's request for discharge and directed issuance of a UOTHC discharge. Accordingly, on 1 October 1979, the applicant was discharged from the Army. His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows that he had 1 year, 9 months, and 22 days of creditable military service and 67 days of lost time due to AWOL.

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.

There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

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 noted the applicant's contentions; however, the Board found no evidence of record where the applicant's DD Form 214 indicates he was court-martialed. The applicant's DD Form 214 reflects that his narrative reason for separation was administrative discharge, conduct triable by court-martial. Additionally, the Board found no evidence that the applicant had continuously sought medical assistance for any medical problems during his military service and was denied treatment. The Board did not find any basis for a medical discharge.

2. The Board noted that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.

3. The applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. The applicant provided no independent corroborating evidence demonstrating that either the command's action was erroneous or that his service mitigated the misconduct or poor duty performance. Additionally, the Board found no evidence of arbitrary or capricious actions by the applicant's chain of command. The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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

__jlp___ __hof___ __gjw___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067039
SUFFIX
RECON
DATE BOARDED	20020723
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19791001
DISCHARGE AUTHORITY	AR 635-200, chapter 10
DISCHARGE REASON	A71.00l
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144.7100
2.
3.
4.
5.
6.