MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 September 2003
         DOCKET NUMBER: AR2003087635

         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. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Margaret V. Thompson		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, that his discharge under other than honorable conditions be upgraded to an honorable or a general discharge.

APPLICANT STATES: In effect, that the type of discharge that he received is too harsh considering the nature of his offenses. In support of his appeal, he submits a copy of a letter from a former teacher of his sister dated 18 November 1980, supporting his request for a reassignment; a copy of a letter from the Principal of the Churchill Park School dated 19 November 1980, supporting his request for a reassignment; and a copy of a letter from a relative and teacher of children that experience learning disabilities dated 28 December 1980, supporting his request for a reassignment.

He also submits a copy of a statement dated 6 February 1981, that he submitted requesting a reassignment to Fort Knox, Kentucky; an Application for Assignment/Deletion/Deferment of Extreme Family Problems (Department of the Army Form 3739) dated March 1981, wherein he requested to be reassigned to Fort Knox, Kentucky; a copy of a Personnel Action (Department of the Army Form 4187) dated 5 March 1981, which shows that his commanding officer recommended approval of his request for a reassignment; and a copy of a letter to this commanding officer from the Outpatient Medical Director of the Seven Counties Services, Incorporated, dated 18 May 1981, supporting his request for a compassionate reassignment.

In addition, the applicant submits a copy of his Certificate of Baptism dated 23 October 1994; a copy of his Marriage Certificate; a Transcript of Record from the Louisville Division of Police, which shows that he has no arrest record; a Transcript of Record from the Louisville Metro Police Department, which shows that he was no criminal record; copies of the birth certificates of his two children; a copy of a certificate which reflect that he is a member of a church; and copies of letters from his wife and children attesting to his good character and post-service conduct.

COUNSEL CONTENDS: That this Board consider all of the evidence of record to include the letters that the applicant’s submitted attesting to his post-service conduct.

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

On 1 July 1980, he enlisted in the Army in Louisville, Kentucky, for 4 years in the pay grade of E-1. He successfully completed his training as an infantryman. On 1 January 1981, he was promoted to the pay grade of E-2.

On 5 March 1981, he applicant submitted a DA Form 3739 requesting reassignment to Fort Knox, Kentucky, indicating that his request was based on his having an emotionally disturbed sister that required constant assistance. In his request, he stated he was jeopardizing the health of his only sister and that he believed that it was most important for him to be stationed at Fort Knox, Kentucky. He further stated that if he was not released, he would most likely; damage his military career, as he believed that his failure to be transferred would result in his going absent without leave (AWOL). He indicated that if his request for reassignment was disapproved, he wanted to be considered for a hardship discharge.

Along with his request for reassignment, he submitted a letter from his sister’s former teacher dated 11 November 1980, a letter from the Principal of the school that his sister attended; and a letter from a teacher of the neurologically impaired, who is also one of his relatives, dated 28 December 1980, supporting his request for reassignment, based on his sister’s learning and emotional problems.

On 5 March 1981, the applicant’s commanding officer submitted a DA Form 4187 recommending approval of the applicant’s request for a reassignment, based on family problems.

The applicant went AWOL on 6 April 1981 and he remained absent until he surrendered to military authorities on 9 April 1981.

He went AWOL again on 18 May 1981. While he was AWOL, the Outpatient Medical Director, Seven Counties Services, Incorporated, submitted a letter to the applicant’s commanding officer. The letter explained that he, as a staff psychiatrist, had an opportunity to examine the applicant’s sister in conjunction with the applicant’s request for reassignment to Fort Knox, Kentucky. The psychiatrist opined that the applicant’s sister had apparently already undergone a great deal of psychosocial turmoil with the death of her father; that during her examination she gave the impression of being much younger than her actual age, almost a childlike demeanor, and a decreased fund of general knowledge for someone her age; and that she was very slow to respond to questions and when she did respond, it was predominantly in monosyllables.

The psychiatrist indicated that she constantly looked around the room with darting glances, but she denied feeling nervous or anxious when directly questioned about the same; that on mental status examination, she exhibited definite and significant impairment of insight and judgment; and that her mood was slightly agitated; however, she described herself as moody with recurrent episodes of depression. She had no abnormalities of memory for recent, remote or immediate recall and within the obvious limitations, she was oriented in three spheres. The psychiatrist further opined that there were no signs of a thought disorder as measured by hallucinations or delusions; that she came across as a very dependent personality, much more that one would expect for someone her age; that she had occasional mild signs of neurovegetative aspects of depression; that she responded with a definite increase in anxiety at the possibility of her brother being away from her; that she had a definite dysphoric episode while discussing her father; and that her mood lifted when she discussed some of the things that she and her brother did together.

The psychiatrist stated that while he did not have the results of her psychological testing before him, based on his examination, he would judge the applicant’s sister to be at least in the borderline mentally retarded area, however, there was a great deal of emotional overlay. The psychiatrist remarked that her level of anxiety and dysphoria decreased significantly when her brother re-entered the room.

The psychiatrist concluded his evaluation by stating that be believed that the applicant’s sister suffered definite emotional instability related to the loss of her father and that she seemed to have invested a great deal of her expectations in the applicant. The psychiatrist determined that the loss of her brother at that point in time might do irrevocable emotional harm and that the applicant’s request for a reassignment close to home seemed to be well-founded, sincere and admirable considering his devotion to his sister. He urged that the applicant’s request for reassignment be granted.

The applicant surrendered to military authorities and returned to military control on 27 May 1981.

On 11 June 1981, the applicant was notified that charges were pending against him for four specifications of failure to go to his appointed place of duty; two specifications of being AWOL; six specifications of disobeying a lawful order; being disrespectful in language to his senior noncommissioned officer; and assault.

He acknowledged receipt of the notification and on 24 June 1981, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial. Along with his request for discharge he submitted a statement in his own behalf indicating that he was requesting a chapter 10 discharge because his only sister was emotionally disturbed. He stated that the charges against him were compounded by the pressure of what he was hearing from home and that he believed that he must be discharged from the Army so that he could participate financially in his sisters well being. He concluded by stating that he would be very displeased if he were not discharged from the Army because his being away would be jeopardizing his sister’s health.

The appropriate authority approved the recommendation for discharge on 8 July 1981. Accordingly, on 16 July 1981, he was discharged under other than honorable conditions, under the provisions of Army Regulations 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial. He had completed 1 year and 16 days of total active service and he had 12 days of lost time due to AWOL.

On 8 February 1983, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

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 discharge for the good of the service 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 is authorized, 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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

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

3. The Board has noted the contentions made by the applicant and his counsel. The Board has also noted the fact that the applicant requested a compassionate reassignment due to his sister’s mental health condition. There is no doubt that his sister’s condition was authentic. While the Board is empathetic to her condition, it does not excuse his acts of misconduct.

4. The board has also considered the applicant’s post-service conduct. However, the charges that were pending against him were not based on one isolated incident. He was charged with four specifications of failure to go to his appointed place of duty; two specifications of being AWOL; six specifications of disobeying a lawful order; being disrespectful in language toward his senior noncommissioned officer; and assault. His post-service conduct is not sufficiently mitigating to warrant the relief requested.

5. He submitted a request for discharge rather than facing the charges that were pending against him and considering his numerous acts of misconduct, it does not appear that the type of discharge that he received was too severe.

6. 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.

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

__mm ___ ___mvt__ __rjw ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087635
SUFFIX
RECON
DATE BOARDED	2003/09/30
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	1981/07/16
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	689
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 706	144.7017
2. 708	144.7100
3. 713	144.7130
4. 716	144.7300
5. 725	144.7600
6.