MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 April 2003
         DOCKET NUMBER: AR2002078087

         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. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Thomas Lanyi		Member
Mr. Bernard P. Ingold		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 upgraded to an honorable discharge.

APPLICANT STATES: That prior to the period of enlistment under review, he was honorably separated for medical reasons while he was still in basic training. He did not disclose this information at the time of the period of enlistment under review because he really wanted to serve his country and thought that he could complete his training in spite of the injury that he received during his first enlistment. He was a dedicated kid, his intentions were honorable, and his injury contributed to him receiving the UOTHC discharge.

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

In June 1978, he enlisted in the United States Army Reserve (USAR). On 5 June 1978, he was ordered to initial active duty for training (IADT). While on IADT, he underwent a Medical Evaluation Board (MEB) for left knee pain. He was diagnosed with an enchondroma, a type of benign bone tumor that originates from cartilage. It was determined that this was a congenital condition, existing prior to service (EPTS). In fact, the applicant had a documented history of pain in his left knee associated with his tumor prior to entering the service. Once on active duty, the requirements of basic training caused recurrent knee pain and tenderness. On 10 July 1978, the MEB recommended the applicant be separated for failure to meet procurement medical fitness standards. On the same date, the recommendation was approved. On 11 July 1978, the applicant agreed with the MEB's action.

On 18 July 1978, while in a trainee status, the applicant was honorably separated for failure to meet procurement medical fitness standards. He was issued a DD Form 214 (Report of Separation from Active Duty) that shows he had completed 1 month and 14 days of active military service.

On 11 September 1980, the applicant enlisted in the USAR for a period of 6 years. A Standard Form 93, Report of Medical History, that was completed on that same date showed the applicant reported his health was good and he was taking no medications. Item 25 (Physician's Summary and Elaboration) shows that the applicant stated his tonsils were removed at age 12; that his legs and right clavicle were fractured; that he had suffered a concussion due to football; that he had a "tumor of the left knee burned out;" and that he was in good physical condition. On the same date, a Standard Form 88, Report of Medical Examination, showed the applicant to be qualified for enlistment.

On 10 October 1980, the applicant was ordered to IADT and assigned to Fort Jackson, South Carolina, for one-station unit training.

Between 30 October 1980 and January 1981, the applicant was evaluated at the Troop Medical Clinic, Fort Jackson, on several occasions due to pain in his right knee, right foot, and shins (due to shin splints). It was not until January 1981 that he complained of pain in both knees. His health did not hinder him from completing basic training.

On 5 December 1980, following completion of basic training, he remained at Fort Jackson for 16 weeks of advanced individual training in military occupational specialty (MOS) 94B (Food Service Specialist).

The applicant left his unit at Fort Jackson in an absent without leave (AWOL) status from 31 January - 3 February 1981, and from 6 February - 9 September 1981, when he returned to military control at the Personnel Control Facility (PCF), Fort Bragg, North Carolina. He left Fort Bragg in an AWOL status from 24 September - 3 October 1981.

On 13 October 1981, court-martial charges were preferred against the applicant for the periods of AWOL from 6 February - 9 September 1981 and 24 September 1981 - 3 October 1981.

On 14 October 1981, a mental status evaluation determined the applicant was qualified for administrative separation action. On the same date, the applicant consulted with legal counsel and requested discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of court-martial. He was advised that he could receive a UOTHC discharge. He authenticated a statement with his signature acknowledging that he understood the ramifications and effects of receiving a UOTHC discharge. He did not submit a statement in his own behalf.

The applicant's records do not contain all of the facts and circumstances surrounding the discharge process. However, his records do contain a properly constituted DD Form 214 that was prepared at the time of separation. The DD Form 214 shows that, on 16 November 1981, he was separated with a UOTHC discharge due to conduct triable by court-martial under the provisions of chapter 10, Army Regulation 635-200. He had completed a total of 5 months and 13 days of active military service and he had 230 days of lost time.

There is no evidence that the applicant ever applied to the Army Discharge Review Board for review of his discharge under that board's 15-year statute of limitations.

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 an administrative discharge 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. Although, an honorable or general discharge was authorized, a UOTHC discharge was then 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. 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. The available records show that the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, with an administrative discharge for conduct triable by court-martial, to wit: repeated acts of AWOL. Although, the facts and circumstances surrounding the discharge process are not in the file, he was charged for commission of an offense punishable under the UCMJ with a punitive discharge. He consulted with defense counsel and signed a statement indicating that he had been informed that he could receive a UOTHC discharge and the ramifications of receiving such a discharge. He voluntarily requested discharge to avoid trial by court-martial. In doing so, he admitted guilt to the stipulated offense(s) under the UCMJ. The Board presumes administrative regularity and the applicant has provided no information that would indicate the contrary of his characterization of service nor his narrative reason for separation.

3. The evidence available supports that the applicant was honorably separated from the USAR the first time for failure to meet procurement medical fitness standards due to an EPTS medical condition.

4. The applicant reenlisted in the USAR a little more than 2 years later and a medical examination determined that he was qualified for enlistment at the time. There is no evidence available to indicate that the applicant's health affected his ability to train or that a medical condition contributed to him continuously leaving his unit in an AWOL status. The applicant has provided no evidence to the contrary.

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

__jns___ __tl____ __bpi___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002078087
SUFFIX
RECON
DATE BOARDED	20030429
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19811116
DISCHARGE AUTHORITY	AR635-200, Chap 10
DISCHARGE REASON	A01.43
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	144.0143
2.
3.
4.
5.
6.