MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 10 September 2002
         DOCKET NUMBER: AR2002073721

         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. Lee Cates		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Barr		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 or general under honorable conditions.

APPLICANT STATES: In three attachments and 4 exhibits as follows:

In attachment # 1, he discusses Department of Veterans Affairs benefits.

In attachment # 2, he requests an upgrade of his discharge to general under honorable conditions based on his previous good service. He contends the court-martial to which he had been preferred, had no authority to impose an undesirable discharge. He indicates he had PTSD (post traumatic stress disorder) as a result of his permanently damaging tearing of his left medial collateral ligament of his left knee. He indicates he advised his legal counsel of his alcohol and drug abuse, which led to his anachronistic characterization, which led to his episodes of misconduct and he was advised not to submit this evidence. All this led him to believe that the only option was an administrative separation in lieu of a court-martial which could only result in a dishonorable discharge or prison.

He indicates that a discharge characterized as anything other than honorable carries with it both a serious stigma in the form of injury to reputation and loss of employment opportunities.

He indicates that under current standards, he would not have received the type of discharge he received. His average conduct and efficiency ratings, behavior and proficiency marks were good, or pretty good. His record of NJPs (non-judicial punishment), indicate only isolated or minor offenses. His ability to serve was impaired by his youth and immaturity, also personal, medical and physical problems. He feels the punishment he received was too harsh. He wanted to be present at his hearing, but he was not notified and did not get the opportunity to testify or cross-examine adverse witnesses.

He makes reference to White v. Secretary of the Army, Wood v. Secretary of Defense and Bland v. Connally, in support of his application.

In attachment # 3, he discusses the exhibits provided.

         Exhibit I - A copy of his induction physical examination, dated 20 November 1976, which found him acceptable for enlistment in the Army with a physical profile of 111111A.




         Exhibit II - A copy of his physical examination under chapter 10, dated 20 March 1980, which found him qualified for separation with a physical profile of 111111A.

         Exhibit III - A copy of a DA Form 3349 (Medical Condition –Physical Profile Record), dated 12 September 1979, which shows he was qualified for limited duty with a P3 physical profile of P3 under the lower extremities for a painful left knee.

         Exhibit IV - A copy of a FC Form 1424 (Commander’s Information/Summary Sheet), dated 13 March 1980, which indicates the commander concurred with a recommendation to offer NJP and return to duty; however he noted a prior record of misconduct and he did not consider the applicant restorable.


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

He was born on 4 June 1959.

During the period 26 November 1976 to 11 July 1977, he was in the Army Reserve Delayed Entry Program.

On 12 July 1977, he enlisted in the Regular Army. He completed his required training and was awarded military occupational specialty 67U (Medium Helicopter Repairman). He was advanced to pay grade E-3, effective 1 April 1978.

On 21 December 1977, he was administered NJP under Article 15, Uniform Code of Military Justice for his possession of marihuana on or about (o/a) 19 December 1977. His punishment included a forfeiture of $90 pay.

On 8 January 1979, he was administered NJP for assault on another soldier o/a 16 December 1978 and for disobeying a lawful order o/a 19 December 1978. His punishment included a reduction to pay grade E-2 and a forfeiture of $50 pay.

On 2 February 1979, he was administered NJP for his disrespect to a superior commissioned officer o/a 11 January 1979. His punishment included forfeiture of $75 pay per month for 2 months (suspended for 60 days) and confinement for 30 days.

On 21 May 1979, he was administered NJP for being absent without leave for the period 11 to 14 May 1979. His punishment included reduction to pay grade E-1 (suspended for 90 days) and a forfeiture of $50 pay. The suspension of reduction to pay grade E-1 was vacated on 26 June 1979.

On 13 December 1979, he was administered NJP for assault on another soldier o/a 30 November 1979. His punishment included a reduction to pay grade E-1 and a forfeiture of $50 pay.

On 13 March 1980, the unit commander preferred court-martial charges against the applicant for being absent without leave for the period 19 January to 10 March 1980.

On 17 March 1980, after consulting with legal counsel, the applicant voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He acknowledged that he could receive a bad conduct or dishonorable discharge; that he was guilty of the charges against him; that he had consulted with legal counsel; and, that he had no desire to perform further military service.

On 20 March 1980, a physical examination cleared him for separation.

On 4 April 1980, the appropriate separation authority approved his request, directed his reduction to pay grade E-1 and that a discharge UOTHC be issued.

On 22 May 1980, the applicant was discharged, in pay grade E-1, with a UOTHC discharge certificate, under the above-cited regulation. His separation document indicates he had 2 years, 8 months and 17 days of creditable service and 53 days of lost time.

There is no record of appeal to the Army Discharge Review Board for a discharge upgrade.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service), then in effect, set forth the basic authority for the separation of enlisted personnel. Chapter 10 provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial of the service in lieu of trial by court-martial.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.
Department of Defense Directive 1332.28 (discharge review procedures and standards) provides, in pertinent part, that a discharge shall be deemed equitable unless the policies and procedures under which the applicant was discharged differ materially from those currently in effect, provided that the current policies or procedures represent a substantial enhancement of rights and there is substantial doubt that the same result would have obtained under the current standards.

Department of Defense Directive 1332.28 provides the policy and guidance for discharge review. It provides, in pertinent part, that when it is determined that the rights of an individual were prejudiced by an error of fact, law, procedure or discretion such error will be considered material if there is substantial doubt that the discharge would have remained the same if the error had not occurred.

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 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.

2. 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. The applicant received the discharge he requested.

3. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4. The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief. The Board notes that the applicant was over 18 years of age at the time of his first recorded misconduct.

5. The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.

6. The Board has noted the applicant’s references to the legal decisions; however, he has not shown them pertinent to his case. He requested an administrative discharge in lieu of court-martial and he was properly discharged.

7. 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

_BJE____ _FNE____ _WDB____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002073721
SUFFIX
RECON
DATE BOARDED	20020910
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	144
2.
3.
4.
5.
6.