MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 November 2002
         DOCKET NUMBER: AR2002070968

         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. Stephanie Thompkins		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer .		Chairperson
Mr. Eric N. Andersen		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: In effect, that his 24 October 1985 undesirable discharge (UD) be upgraded to honorable for medical conditions.

APPLICANT STATES: That due to medical conditions, he was not treated for medical illness. He also states that he served in the active Reserve for 10 years and has achieved the rank of staff sergeant, pay grade E-6, since his discharge from active duty. He submits 14 letters of recommendation, his completion certificates for under graduate school and graduate school, and a letter from the Medical Director, Veterans Administration (VA) Hospital.

COUNSEL CONTENDS: Counsel concurs with the applicant's presentation but does not submit argument or evidence beyond that of record or provided by the applicant.

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

He enlisted in the Regular Army for 3 years as a private, pay grade E-1, on 1 September 1977.

His commander preferred court-martial charges against him for multiple acts of misconduct, including drug abuse. Upon notification, the applicant requested discharge under Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of court-martial.

His request was approved and he was discharged under other than honorable conditions on 24 October 1985 under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service-in lieu of court martial. He was credited with 8 years, 1 month and 24 days total service.

On 21 April 1988, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his 24 October 1985 discharge.

He enlisted in the Reserve for 6 years effective 2 January 1992.

His records contain Orders 092-046, dated 30 September 1994, issued by Headquarters 81^st Reserve Command, showing he was discharged from the USAR effective 15 October 1994 with a general discharge, under honorable conditions.

On 7 June 1995, a Report of Proceedings by Investigation Officer/Board of Officers reports that the Commanding General, Headquarters 81^st Reserve Command, disapproved the recommendation of the administrative separation board to separate the applicant and directed his retention in the USAR.

He is presently serving in the Reserve and was promoted to sergeant effective 8 July 1997.

On 31 January 1996, after a records review, the ADRB denied his request for an upgrade of his discharge from active duty.

On 1 August 1996, he applied to the Army Board for Correction of Military Records requesting an upgrade of his 24 October 1985 discharge to honorable. His case was closed without action on 16 February 1999, because his military records could not be located.

In a letter dated 18 April 2001, the Director, Mood Disorders Program, Baltimore VA Medical Center, states that the applicant has received a diagnosis of his medical condition of bipolar disorder, and is beginning effective treatment. He also states that the applicant is bothered by episodes of depression and is currently having difficulty finding employment, which the applicant believes is due in part to his mood disturbance. He further states that due to the onset of these symptoms while in the service, a long delay in making an accurate diagnosis and beginning effective treatment and the disability the applicant has suffered as a result since then, he believes the applicant is deserving of service-connected compensation for this condition.

Army Regulation 635-40, sets forth the policies and procedures in determining whether a soldier is unfit because of physical disability. Paragraph 1-2 of the regulation specifies that a soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.

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. However, at the time of the applicant's separation the regulation provided for the issuance of a UD.

Paragraph 3-7 of this regulation provides that an honorable discharge is a separation with honor. 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, or is otherwise so meritorious that any other characterization would be inappropriate.



The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

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 view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge to honorable. He has not shown error, injustice, or inequity for the relief he now requests.

2. The Board notes the applicant’s contentions that due to his medical condition he was not treated for his medical illness and deserves service-connected compensation for his condition; however, his contentions are not supported by either evidence submitted with the application or the evidence of record.

3. The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial. Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

4. The Board also notes the applicant's contentions that his diagnosis by the VA hospital concerning his continued episodes of depression and that he is currently having difficulty finding employment due in part to his mood disturbance and difficulty in presenting a good impression in job interviews. However, while the Board is empathetic, the applicant has not shown to the satisfaction of the Board that his medical condition was not properly evaluated while he was in the service. His misconduct prevented any consideration for disability processing at the time. It is also noted that his medical condition has not affected his ability to serve in a military status, by his own admission, he has served in the active Reserve for 10 years and has achieved the rank of staff sergeant, subsequent to his discharge from active duty.

5. 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.

6. 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

_ENA___ _MHM___ _JTM___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002070968
SUFFIX
RECON
DATE BOARDED	20021105
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	A70
2.
3.
4.
5.
6.