MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 May 2002
         DOCKET NUMBER: AR2002069510

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Paula Mokulis		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 (UOTHC) be upgraded to honorable, that he receive monies due to attend college as per his enlistment contract, and that he be medically retired with a 50 percent disability rating.

APPLICANT STATES: That during basic training he injured his ankle. He was put on profile for 2 weeks but re-injured it. He was told to wait until he got to advanced individual training (AIT) for further treatment. When he arrived at AIT, he was told to wait until he arrived at his first permanent duty station. He was held over one month to start physical therapy. When he arrived at his first permanent duty station, Fort Drum, NY, his medical file had not arrived so he had to begin another series of physical therapy appointments before he could see an orthopedist. Even though he was on profile, he was taken to the field where he further injured his ankle. He was then given a physical exam on the pretense that it was for a medical separation; however, the underlying factor for it was to prove he was malingering. He was given an orthopedic referral. The orthopedist immediately wanted him to go to surgery. After surgery he was only allowed to have 3 days of quarters. His commander denied him 30 days convalescent leave although it was recommended. About 5 weeks after his operation he was taken to the field six times, setting back the healing process. At his final physical exam prior to his separation, the examining doctor told him he had seen situations similar to his receiving a 50 percent or more disability rating.

In late May 2001, he and three other soldiers were called to the first sergeant’s office and asked if they knew Sergeant ___ had a gun. He told the first sergeant he heard in passing that the sergeant had a gun but that was all. About a week later, his commander asked him to testify against the sergeant. He told his commander he could not since he did not see the gun. An officer at the Staff Judge Advocate’s office told him not to testify. He was later charged with “accessory after the fact” as well as willfully disobeying a lawful order. He did not feel that he was ordered to testify against the sergeant; however, it was his word against two officers. He provides a copy of his service medical records as supporting evidence. His statement has been accepted in lieu of a DD Form 149.

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

He enlisted in the Regular Army on 29 September 1999 for 4 years. One of his enlistment options was the Army College Fund. He acknowledged on his Statement of Understanding United States Army Incentive Enlistment Program, DA Form 3286-66, that he must remain enrolled in the GI Bill to meet this incentive. He also acknowledged that if he failed to complete his term of enlistment and separation or discharge was at the convenience of the Government, he must have completed at least 30 months of service if his initial term was for 3 or more years.
It appears the applicant first injured his ankle in early October 1999. He completed basic training. He was sent to AIT at Fort Huachuca, AZ. He was treated several times for ankle and knee problems. It appears he may have been given a 6-week profile on 3 March 2000 for patellofemoral syndrome with a recommendation he begin a physical therapy program. He was treated again on 6 March 2000 for ankle pain. He was treated on 17 March 2000 for back pain. He completed AIT and was awarded military occupational specialty 96B (Intelligence Analyst) and was assigned to Fort Drum, NY.

Apparently, the applicant underwent a separation physical on 8 January 2001. The reverse of the Report of Medical Examination, SF 88, is not available. At that time, a large mass in his ankle was discovered that felt like bursa but anatomically one should not have been there. He was referred (presumably to Orthopedics) for evaluation. On 6 February 2001, he underwent left lateral ankle reconstruction. On or about 9 April 2001, he was seen for a feeling of instability and rolling to the outside of his ankle. He was instructed in an exercise program and given rehabilitation appointments. On 24 April 2001, he was seen by physical therapy again. Apparently, his unit cancelled his appointments in order to take him to the field. An examination revealed a near normal range of motion, no swelling, and a normal gait.

On 24 May 2001, the applicant was convicted by a summary court-martial of failing to go to his appointed place of duty; stealing $27.19, property of MasterCard; wrongfully appropriating a credit card; two specifications of forgery; being disorderly; and falsely pretending to be a master sergeant with intent to defraud the Government. He was sentenced to 30 days confinement.

On 20 August 2001, court-martial charges were preferred against the applicant charging him with two specifications of disobeying a lawful command from a superior officer to sign in at the Battalion Staff Duty every two hours during non-duty hours; stealing two laptop computers and cable accessories, property of the U. S. Government; and wrongfully concealing two laptop computers and accessories which property he knew to be stolen.

On 27 August 2001, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Department of Veterans Affairs benefits. He did not submit a statement in his own behalf.

On 4 September 2001, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

On 17 September 2001, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial. He had completed 1 year, 10 months, and 13 days of creditable active service and had 24 days of lost time.

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. A discharge UOTHC is normally considered appropriate.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. Paragraph 4-3 states that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC unless the general court-martial convening authority determines that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge UOTHC.

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. 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. There is no evidence to show the applicant was not responding to treatment of his ankle condition. Although his unit did not cooperate as well as it should have in his therapy, on 24 April 2001 an examination revealed he had a near normal range of motion, no swelling, and a normal gait. There is no evidence to show he was eligible for referral to the physical disability processing system at that time.

3. 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 or duress. By requesting administrative separation, he admitted to guilt of charges including stealing two Government laptop computers. There is no evidence to show he was charged with being an “accessory after the fact” in a case against a sergeant or that he disobeyed an order to testify against that sergeant.

4. When the applicant enlisted, he acknowledged that he had to complete at least 30 months of his 4-year enlistment to be eligible for the Army College Fund enlistment option. By requesting separation early, he did not meet the 30-months of service eligibility 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

_RVO___ ___JPI__ __PM____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069510
SUFFIX
RECON
DATE BOARDED	2002/05/30
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	2001/09/17
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.