MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 July 2002
         DOCKET NUMBER: AR2002072626

         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:

Mr. Raymond V. O’Connor, Jr.		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 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 undesirable discharge be upgraded to honorable.

APPLICANT STATES: In effect, that his undesirable discharge was unjust because he had to request a discharge under chapter 10, because vital medical records that were needed for his successful defense were removed from his medical records. He goes on to state that he located a copy of those documents at his mother’s home recently and is providing the documents as proof that he was denied the opportunity to present a proper defense. He further states that at the time he disobeyed the orders he was charged with, he had a medical profile that restricted him from regular duty and he informed his chain of command that he would have to respectfully disobey the order because he was physically unable to comply and was medically exempted from duty. He further states that the orders he disobeyed were illegal orders to begin with and he could not legally be punished. However, because he could not prove that he had a medical profile, he accepted a chapter 10 discharge.

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

He enlisted in Los Angeles, California, at the age of 20, on 29 March 1974, for a period of 4 years, assignment to Hawaii and a cash enlistment bonus. He completed his basic combat training at Fort Ord, California, and his advanced individual training (AIT) at Fort Polk, Louisiana.

Upon completion of his AIT, he was transferred to Hawaii on 10 August 1974, for duty as a light weapons infantryman. He was advanced to the pay grade of E-3 on 6 February 1975.

On 9 June 1975, nonjudicial punishment (NJP) was imposed against him for kicking in and damaging a door. His punishment consisted of a forfeiture of pay.

On 20 June 1975, NJP was imposed against him for being absent without leave from 12 June to 16 June 1975. His punishment consisted of a reduction to the pay grade of E-2, a forfeiture of pay, extra duty and restriction for 14 days. The applicant appealed the punishment and the appeal authority suspended (for a period of 60 days) that portion of the punishment pertaining to restriction for 14 days. However, on 27 June 1975, the suspended portion of his punishment was vacated.

On 24 November 1975, charges were preferred against the applicant for disobeying lawful orders on 23 November 1975, from his company and battalion commanders, to get up, get dressed, load up and go to the field.

The applicant underwent a psychiatric evaluation on 11 and 18 December 1975. The examining psychiatrist opined that the applicant was neither psychotic nor neurotic, but that he had a characterologic pathology. “He has multiple sick call and somatic complaints without objective findings, poor military record, complaints of nervousness and insomnia. He is immature, demonstrates a superficial friendliness and bravado with much more covert hostility and rationalizes his actions. Pre-military record of job instability and poor school history. He has no potential for continued military service.”

On 19 December 1975, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In his request, he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He further elected to submit a statement in his own behalf whereas he contended that he had continually been moved from job to job, that he was still an E-3 after 21 months in the Army, that he had only two minor punishments and that he did not know from one day to the other where he would be working. He stated that if allowed to leave the Army, he would pick up the pieces of his life, return to college in pursuit of his degree and to become a productive citizen. He requested that he be given a general discharge.

The applicant’s company commander recommended that he be given an undesirable discharge and indicated that NJP had been imposed against the applicant twice, he was pending trial by court-martial for two charges of disobeying orders, and that charges were pending for his assault on a fellow soldier. He further stated that the applicant’s conduct bordered on acts of malingering. He went on to state that both civilian and military doctors indicate that his knees are good enough to do his job and he still uses his knees as an excuse to get out of work. “He has no problems playing sports or running up and down stairs. He is a trouble-maker in the unit and does not deserve a general discharge.”

The battalion commander indicated that he had personally counseled the applicant on previous occasions concerning his alleged medical problems and had a special evaluation conducted by the Deputy Chief of Orthopedics, which showed that he was fit for duty. Several weeks later he refused a direct order to go to training on the basis that he could not physically perform field duty. “His continued malingering and conduct make him a detriment to the battalion and he does not deserve a general discharge.”

The brigade commander also indicated that he had interviewed the applicant and opined that he did not deserve a general discharge.


Meanwhile, the applicant underwent a medical and physical examination during the period of 6 January to 9 January 1976, which indicated that his knees were normal to examination. The examining physician cleared him for separation.

The appropriate authority (a major general) approved his request on 21 January 1976 and directed that he be furnished an Undesirable Discharge Certificate.

Accordingly, he was discharged under other than honorable conditions on 30 January 1976, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 8 months, and 27 days of total active service and had 5 days of lost time due to AWOL.

He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 13 November 1977. He contended at that time that he had not been properly treated for his knee injuries until after he had seen a civilian doctor. He contends that he was trying to keep from hurting himself further or becoming permanently disabled when he disobeyed the orders given to him. He also contended that the statements made by his chain of command in connection with his discharge request could not be proven and that they amounted to false statements that amounted to no more than a vendetta by his commander.

The ADRB reviewed his medical records and noted that the applicant had been seen for a history of knee problems, both on the day of his injury and for a period of 9 months. He received medical examinations which included X-rays and two special evaluations by orthopedic surgeons, who both could find nothing wrong with the applicant’s knees and both pronounced him fit for duty. The applicant had provided no proof that the statements made by the chain of command were false. The ADRB opined that there were no mitigating or extenuating circumstances on which a decision to grant relief could be based. The ADRB voted unanimously to deny his request on 13 March 1979.

A review of the applicant’s medical records reveals the documents he has provided with his application. The Board also noted that the applicant was seen on multiple occasions for complaints of knee problems and many of those complaints were based on his participation in football and surfing.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions is normally considered appropriate.

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 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.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. In doing so he admitted guilt to the charges against him. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the number and length of his absences as well as his otherwise undistinguished record of service during such a short period of time.

4. The Board has noted the applicant’s contentions. However, they are not supported by the evidence submitted with his application or the evidence of record and the Board finds that his overall record of service is not sufficiently mitigating to warrant relief.

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

__kwl ___ __rtd ___ __rvo ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072626
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/25
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1976/01/30
DISCHARGE AUTHORITY	AR635-200/CH10
DISCHARGE REASON	GD OF SVC
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 689	144.7000/A70.00
2.
3.
4.
5.
6.