MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 22 MAY 2003
         DOCKET NUMBER: AR2003085480

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Stanley Kelley		Member
Ms. Gail J. Wire		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 discharge be upgraded.

APPLICANT STATES: In a self-authored statement, that he was 18 years old when he enlisted in the Army "to fulfill [his] life's dream of becoming a soldier." He states during basic training he sustained an injury to his back when he fell on a rock during the inverted crawl. He states that "with the technology available back then" his doctors were unable to detect that he had "busted four disks when [he] hit the rock." The applicant states that when he arrived at his first permanent duty station the doctors were still unable to detect anything and sent him to a psychiatrist. He maintains that he tried to make his chain of command understand that he was in severe pain and out of fear he went AWOL (absent without leave) to seek treatment from his family doctor. He states that after 20 months the medication that his family doctor had prescribed was no longer working.

The applicant states when he returned to military control he continued to receive treatment for his back pain with physical therapy. He maintains that he was kept medicated which "altered [his] ability to think." He states that he signed a lot of papers at the time of his discharge but because he was young he did not understand what was going on. He believed he was signing discharge papers for a disability separation, but discovered later on that was not the case. He states that all of his medical records "strangely…could not be located" and discovered "later that they must have been thrown away." He states he is receiving disability benefits from the state of Arkansas but is continuing to seek benefits from the Department of Veterans Affairs.

In addition to his self-authored statement, the applicant also submits copies of medical treatment documents prepared between August and October 1981, including two physical profile documents.

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

He entered active duty on 5 July 1979, one month shy of his 19^th birthday. He successfully completed basic and advanced individual training and on
15 October 1979 arrived at Fort Ord, California.

A statement rendered by the applicant's unit commander indicates that on
31 October 1979, the applicant told his commander that he "was no longer going to stay here at the unit, that he was leaving and not coming back." The applicant failed to report for the unit's formation on 1 November 1979 and as a result of his statement to his commander, he was dropped from the rolls of the Army.

On 29 July 1981 the applicant returned to military control.

Medical documents, provided by the applicant in support of his request, indicate that he sought medical treatment on 20 August 1981 for chronic low back pain, which he attributed to an injury sustained 2 years earlier during training. He was issued a temporary profile.

On 15 October 1981 court-martial charges were preferred against the applicant for his period of AWOL.

On 16 October 1981 a medical treatment document noted that the applicant's range of motion was within normal limits, that a neurological examination was also within normal limits, and that he was able to sit with no difficulty with legs flexed at 90 degrees. The document also noted that the applicant had missed multiple appointments at the physical therapy clinic and at the mental health clinic. It indicated that it was questionable if the applicant's lower back pain was psychosomatic, the result of conversion reaction, or evidence of malingering.

According to documents in the applicant's file, he again departed AWOL on
2 November 1981. It is unclear when he returned to military control. However, on 23 November 1981 the applicant voluntarily requested discharge in lieu of trial by court-martial. He consulted with counsel and acknowledged in his request that he understood the nature and consequences of the undesirable discharge which he might receive. He indicated he understood he could be denied some or all veterans' benefits as a result of his discharge and that he may be deprived of rights and benefits as a veteran under both Federal and State law.

In a statement submitted with his request for separation he related that the reason that he went AWOL was because his back was giving him a lot of trouble and his unit was doing nothing to get him into the hospital. He states that although he was unable to locate his medical records, he did have his medical treatment records which documented his back problem since he returned to military control. The applicant stated that he now realized that he should have stayed and worked his problem out but at the time he did not know what options were available to him. He asked that he receive a general discharge so that he could seek treatment from the Department of Veterans Affairs.

A mental status evaluation, conducted in conjunction with his separation processing, noted that the applicant was fully alert and oriented and that his thought process was clear and normal.

On 16 December 1981 the applicant's request for discharge in lieu of trial by court-martial was approved and on 29 January 1982 the applicant was discharged under other than honorable conditions. He had 9 months and 24 days of creditable service and more than 630 days of lost time.

The applicant's file contains medical summary documents completed in late 1995 and early 1996 when he underwent radiofreguency denervation for his back pain.

In October 1997 the applicant's petition to the Army Discharge Review Board to upgrade the character of his discharge was denied.

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.

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 maintains that he so severely injured his back during basic training he elected to go AWOL in order to seek medical care from his family physician. However, the only medical evidence he presents to the Board is limited to the treatment he sought after his return to military control in 1981 and medical treatment he received in late 1995 and early 1996. The Board notes that the 1981 medical treatment documents do not support the severity the applicant maintains and he offers no explanation why his attending physicians would relate other than their true findings on the medical treatment forms. The Board also notes that the applicant successfully completed training, in spite of the severe pain he maintains he was in.

2. The Board notes that the applicant was at Fort Ord, California for less than 20 days before he went AWOL, which was hardly a sufficient amount of time for his chain of command to render him any sort of assistance if his back was truly as painful as he would have the Board believe. The Board also notes that there would have been no reason for the applicant's unit commander to leave that information out of his statement, when relating the statement the applicant had made to him prior to the applicant's 1 November 1979 AWOL departure.

3. The applicant's contention that he did not know what he was signing when he requested discharge in lieu of trial by court-martial is without foundation. The Board notes that in his own December 1981 self-authored statement he was aware enough to realize the impact of a less than honorable discharge on his entitlement to Department of Veterans Affairs benefits and asked for leniency in the form of a general discharge.

4. The applicant was AWOL for more than 630 days; there is no evidence that his administrative discharge was not accomplished in compliance with applicable laws and regulations. His under other than honorable conditions discharge was appropriate.

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

__RVO__ __SK ___ ___GJW DENY APPLICATION

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

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INDEX

CASE ID	AR2003085480
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030522
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.