MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2003087826

         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. Yvonne J. Foskey		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		Member
Mr. Harry B. Oberg		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 her under other than honorable conditions (UOTHC) discharge be upgraded to either an honorable discharge (HD) or a general, under honorable conditions discharge (GD).

APPLICANT STATES: In effect, while stationed in Germany she was being treated for depression. She claims that she departed Germany on a 21-day leave when her Aunt passed away from cancer. She states that she suffered a nervous breakdown while on leave and did not return. She states that she turned herself in at Fort Ord, California, and court-martial charges were preferred against her for the period she was absent without leave (AWOL). At the time, given her mental state, she elected to request an administrative discharge in lieu of court-martial.

The applicant further states that she served her country honorably until the AWOL incident that led to her discharge. She claims she was diagnosed with severe depression and believes she was not given a fair shake. She claims that she had an illness that was not treated properly and was expected to perform as if nothing were wrong. She now feels that a medical discharge would have been more appropriate.

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

On 12 August 1980, she enlisted in the Regular Army for 3 years. Her Personnel Qualification Record (DA Form 2-1) shows that she successfully completed basic training at Fort Jackson, South Carolina, and advanced individual training (AIT) at Fort Sam Houston, Texas. Upon completion of AIT, she was awarded military occupational specialty (MOS) 91B (Medical Specialist).

The applicant’s record also confirms that the highest rank she attained while serving on active duty was private first class/E-3 (PFC), and it documents no acts of valor, significant achievement, or service warranting special recognition.

The record does reveal a disciplinary history that includes the applicant’s acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 5 May 1982 for the following offenses: dereliction of duty; AWOL; two specifications of disobeying a lawful order; and two specifications of leaving her appointed place of duty without proper authority. The resultant punishment included a reduction to private/E-1, forfeiture of $100.00 pay, and 14 days of restriction and extra duty.

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On 21 April 1982, a court-martial charge sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for being AWOL from on or about 2 March to on or about 1 April 1982.

The applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and of the procedures and rights that were available to her. Subsequent to this counseling, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

In her request for discharge, the applicant acknowledged her understanding that she would be deprived of many or all Army benefits, that she could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that she could be deprived of her rights and benefits as a veteran under both Federal and State law. The applicant provided a statement with her request that indicated that she was physically, emotionally, and mentally incapable of performing her assigned duties.

On 22 April 1982, the separation authority approved the applicant’s request for discharge. The separation authority further directed that she be separated for the good of the service under the provisions of chapter 10, Army Regulation
635-200, and that she be given an UOTHC discharge.

On 2 May 1982, the applicant signed a statement in which she acknowledged that she was not required to undergo a separation physical examination. She also indicated that she understood that her medical records would be reviewed by a physician and, if the review indicated that an examination should be accomplished, she would be scheduled for an examination. In this statement, the applicant elected not to undergo a separation examination. The medical records on file give no indication that the applicant suffered from a medically disqualifying condition at the time of her discharge.

On 21 May 1982, the applicant was discharged after completing a total of 1 year, 8 months, and 10 days of creditable active military service. The DD Form 214 issued to her on the date of her separation shows that she received a UOTHC discharge, under the provisions of chapter 10, Army Regulation 635-200, by reason of conduct triable by court-martial.

On 19 July 1983, the applicant requested personal appearance before the Army Discharge Review Boards (ADRB) in order to present her case for an upgrade of her discharge. The ADRB scheduled her appearance for 8 March 1985; however, on 20 February 1985, the applicant withdrew her ADRB application.

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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 Board notes the applicant’s contention that she suffered from a medical condition that impaired her ability to serve and that she should have been granted a medical discharge. However, the evidence of record confirms that the applicant elected not to undergo a separation physical examination in conjunction with her separation. Further, there is no evidence that suggests she suffered from a medically disqualifying condition at the time of her discharge.

2. The evidence of record shows the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The Board notes that, after consulting with defense counsel, and being advised of the consequences of requesting an administrative discharge in lieu of court-martial, which included the loss of VA benefits, the applicant voluntarily requested separation in lieu of trial by court-martial.

3. Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and the character of her discharge accurately reflects her overall record of service. Therefore, the Board concludes that 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. 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

__HBO___ __TL__ __AO___ DENY APPLICATION

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

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INDEX

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