MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 12 December 2002
         DOCKET NUMBER: AR2002079062


         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Roger W. Able		Chairperson
Ms. Karen Y. Fletcher		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)

APPLICANT REQUESTS: Reconsideration of her earlier appeal to correct her military records by voiding her discharge and reinstating her to active duty in the pay grade of E-5.

APPLICANT STATES: In effect, that given the previous denial of her application was largely based on the fact that the Board did not have the benefit of reviewing the administrative discharge packet prepared on her. She now provides a complete copy of that packet for the Board’s review.

The applicant claims that after reviewing the case, the battalion commander acknowledged that she had a traumatic experience the morning prior to the assault. Further, that she was heavily medicated and acting totally out of character at the time of the assault. However, the battalion commander stated that she had not proven beyond a doubt that she did not recognize that the captain she assaulted was a commissioned officer. However, the applicant claims that witness statements in the separation packet will confirm she was found wandering the streets to find her way home and was not coherent enough to give directions to her own quarters only minutes before the incident with the captain. She claims that the battalion commander stated that based on her not proving that she did not recognize the captain as a commissioned officer, regardless of the circumstances, he was required to charge her with assaulting a commissioned officer. As a result, he vacated her suspended punishment and separation action was initiated against her. She claims that other charges brought by a sergeant were proven to have absolutely no merit, and the battalion commander took the action he did based on the outlined circumstances.

The applicant indicates that witness statements from individuals that witnessed her accident, and from the police officers on the scene will confirm she went into shock shortly after her accident. However, a sergeant and members of her chain of command who were not present at the accident made statements to medical personnel that she had attempted suicide before she ever arrived at the emergency room. These incorrect statements resulted in more confusion and more unnecessary trauma while she was in the emergency room. She claims that she blacked out while driving, and that event was the suspected cause of the accident, not an attempted suicide. She claims that she was sent to many physicians who all made the same diagnosis, which confirm she was under the influence of unknown types of medication and suffering from a head injury at the time of the incident involving the captain. Further, she states that she had been under extreme stress, had recently been taken off a prescription medication, and was suffering several side effects, such as dizziness and hallucinations. These combined effects and stress were likely the cause of her black out and accident, which occurred only a few hours before the incident with the captain.

The applicant also claims that a sergeant who openly carried on an affair with another soldier in the unit shortly after she was given nonjudicial punishment (NJP) for committing adultery with him has reentered the Army. She claims that no action was ever taken against this sergeant or against the other soldier that he had an affair with, even though the sergeant was still married. She states that she is not attempting to say that she was not wrong for her involvement with this sergeant, but to show that she was not given equal treatment with others who had committed the same offense in the same unit. She claims that despite the openness of the their relationship, the sergeant and the other soldier with whom he had an affair, the command dismissed the issue and simply told her that the soldier with whom the sergeant was having the affair was leaving the military anyway. She claims that she was also told that she was not in a position to complain and further accusations from her would be viewed as harassment. She states that she believes these factors are relevant because it is another illustration of the injustice, inequity, and personal bias she faced in the command. She states that this affair is not a matter of her speculation because the sergeant and the other soldier have a child that was conceived during this period. She provides the separation packet in the hopes that it will be reviewed by the Board and its original decision will be reconsidered.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR2001064790) on 16 April 2002.

On 2 August 2001, the applicant was honorably discharged under the provisions of paragraph 5-16, Army Regulation 635-200, by reason of a physical condition not a disability. At the time of her separation, she had completed a total of
4 years, 6 months, and 16 days of active military service, and she was authorized to received ½ separation pay. As indicated in the original review of this case, the applicant authenticated the DD Form 214 issued to her upon her discharge, thereby verifying the information contained therein.

The separation packet submitted by the applicant in this request for reconsideration confirms that on 12 June 2001, her unit commander notified her that separation action was being initiated against her for a physical or mental condition, not a disability. The unit commander indicated that the action was based on a mental status evaluation conducted on the applicant that found that she manifested disturbances of emotional control sufficiently severe to impair her ability to effectively perform military duties.

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The unit commander further indicated the mental diagnosis on which the separation action was based was preceded by a pattern of misconduct that included the applicant’s acceptance of field grade NJP for committing adultery, and the vacation of the suspended portion of the punishment imposed for this offense based on her assault of her company commander.

On 13 June 2001, the applicant acknowledged receipt of the separation notification. On 20 June 2001, she consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects. Subsequent to this counseling, the applicant completed a request for a conditional waiver of her right to have her case considered by an administrative separation board. This conditional waiver request was contingent on her receiving an honorable discharge.

On 28 June 2001, the separation authority approved the separation action on the applicant and conditional waiver. Accordingly he directed that the applicant receive an honorable discharge.

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 Board notes the applicant’s contentions and carefully considered the separation packet submitted by the applicant and all its enclosures. However, it finds this packet provides insufficient evidence to support changing the original findings and recommendations of the Board.

2. The Board specifically notes that the applicant waived her right to consideration of her case by an administrative separation board contingent on receiving an honorable discharge, and that the separation authority ultimately approved her separation under the terms of her own conditional waiver request.

3. The separation packet confirms that the applicant’s separation processing was conducted in accordance with the applicable regulations. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Therefore, the Boards finds the requested relief is not warranted in this case.

4. 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.

5. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__RWA__ __KYF___ __BPI__ DENY APPLICATION




         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002079062
SUFFIX
RECON	AR2001064790 - 2001/04/16
DATE BOARDED	2002/12/12
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2001/08/02
DISCHARGE AUTHORITY	635-200 C5
DISCHARGE REASON	Physical Condition, Not a Disability
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 192	110.0300
2.
3.
4.
5.
6.