MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:



                  BOARD DATE: 09 OCTOBER 2003
                  DOCKET NUMBER: AR2003087356

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. Robert J. Osborn II		Member
Ms. Eloise C. Prendergast		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: In effect, the applicant requests physical disability retirement or discharge.

APPLICANT STATES: That he should have received a medical discharge instead of a discharge under other than honorable conditions. He volunteered for the military and was a good soldier until he was assigned to Fort Sill, Oklahoma.

The applicant provides an account of the problems that he experienced while at Fort Sill, to include prejudice and discrimination because of his race. He states that he was given a summary court-martial, and acquitted. He was supposed to be transferred; however, remained with his same company. He was under stress and made an appointment with a psychologist. All he wanted to do was to make something of himself, besides being a drug dealer. He was supposed to receive a medical discharge because the doctor stated that his bones were deteriorating. He was mentally and physically abused. He ended up being a drunk and a drug abuser. Now he is in prison just because he wanted to be all he could be. He is a black American who wanted to serve his country.

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

The applicant enlisted in the Army Reserve for 6 years on 5 April 1978. He completed training as a tactical wire operations specialist at Fort Gordon, Georgia, and was released from active duty on 7 October 1978.

On 10 January 1980 the applicant was involuntarily ordered to active duty for 20 months and 22 days, with a reporting date to Fort Jackson, South Carolina on 3 March 1980. A few days later the applicant was assigned to Fort Sill as a tactical wire operations specialist.

The applicant's medical records show that he was treated for various ailments and injuries while on active duty – back pain on three occasions in March and April 1980; cold, sore throat, coughing, stuffy or runny nose, congestion, on six occasions in 1980 and 1981; groin pain in June 1980; knot on top of his instep in April and July 1980; wrist and hand pain in July 1980; abdominal pain in September and October of 1980; sprain to his left ankle in October 1980; and pain and a knot in his chest in February and March 1981. On 9 April 1981 a physician indicated that he had a growth on his left chest wall. A tissue excision showed that he had a lipoma, a benign tumor.

On 21 October 1980 the applicant received nonjudicial punishment under Article 15, UCMJ (Uniform Code of Military Justice) for being absent from his place of duty.

On 17 December 1980 the applicant's commanding officer recommended that the applicant be barred from reenlistment, stating that the applicant had a negative attitude, that he did not respond to good order and discipline within the unit, and had been counseled on several occasions, to no avail. The 75th Field Artillery Group Commander at Fort Sill approved the recommendation.

On 16 March 1981 the applicant received nonjudicial punishment for failing to go to his place of duty.

On 1 April 1981 charges were prepared against the applicant for assault. The Staff Judge Advocate, upon receipt of those charges, recommended to the Commander, United States Army Artillery Center and Fort Sill that the applicant be tried by a special court-martial empowered to adjudge a bad conduct discharge.

On 7 May 1981 the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, because of the charge preferred against him which authorized the imposition of a bad conduct or dishonorable discharge. He stated that he acknowledged that he was guilty of the offense against him, and that under no circumstances did he desire rehabilitation, for he had no desire to perform further military service. He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive. He declined to submit a statement in his own behalf.

On 12 May 1981 the separation authority approved the applicant's request and directed that he be discharged under other than honorable conditions. The applicant was discharged on 15 May 1981.

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.

Army Regulation 635-40 establishes the Army Physical Disability Evaluation system and sets forth the policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability. That regulation states in pertinent part, that an enlisted Soldier may not be referred for, or continue, physical disability processing when an action has been started under any regulatory provisions which authorizes a characterization of service of under other than honorable conditions.

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 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.

2. There is no evidence, nor has the applicant provided any, to show that he was medically unfit for retention. His medical records show that his ailments and injuries while on active duty were routine and treated accordingly. Nonetheless, because of the nature of his separation, the applicant could not be processed for physical disability retirement or discharge.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

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 that requirement.

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

__RVO__ __RJO __ __ECP __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087356
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031009
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.	108.00
2.
3.
4.
5.
6.