MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 6 November 2003
         DOCKET NUMBER: AR2003088950

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Mae M. Bullock		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 request for correction of her records to show she received a fully honorable discharge by reason of completion of her expiration term of service, with back pay and general and exemplary compensatory damages.

APPLICANT STATES: That it was not mere happenstance when her leadership ordered her to undergo a chapter 10 separation medical examination even though she was not yet in a legal position to request a chapter 10. Viewed in conjunction with the evidence in total, it is an undeniable fact that the unauthorized examination was ordered by leadership in preparation for and anticipation of realizing its plan to take away her right to trial and unlawfully separate her from the service. That was conspiracy, which is unlawful. Leadership quite plainly jumped the gun.

The applicant further states that unlawfulness is revealed as well when on the same date of 6 November [1978], she was not only informed of the Articles 86 and 90 court-martial charges but also allegedly submitted the discharge request. The regulation states that the soldier will be given not less than 72 hours to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. The irrefutable fact disclosed by the court-martial paperwork is that she was not given that time specified. That time was absolutely denied her. The paperwork discloses that it was in fact only a matter of a few hours between the time she was informed of the charges and the time the discharge request was allegedly submitted.

The applicant stands by her testimony. Weeks earlier her first sergeant had already begun preventing her from receiving medical attention for pregnancy complications. She was placed under house arrest in total isolation. Medical attention and food were deliberately withheld unless and until she signed the discharge request. She was left with no reasonable alternative to not signing. New evidence shows that, ill and bleeding, she was transported under guard by bus on 6 November, at her attorney's directive and first sergeant's authorization, some 50 plus miles to the attorney's new unit in Seoul. Upon arriving in counsel's office, he did not advise her that a chapter 10 was not a legally available option. He rushed her to sign it.

As supporting evidence, she provides a 19 October 1978 radiographic report completed as part of her chapter separation medical examination; a Standard Form 88 (Report of Medical Examination) dated 23 October 1978 showing the purpose of examination to be a chapter 10 separation; an extract from Army Regulation 635-200 which shows a member who submits a request for discharge for the good of the Service will undergo a medical examination; an extract from her court-martial charge sheet, dated 6 November 1978; an Article 15 dated 30 October 1978 charging the applicant with disobeying a lawful command from her superior commissioned officer to put on her duty uniform and to go her section (she demanded trial by court-martial); a Clinical Record Consultation Sheet to Gynecology dated 7 November 1978 for a provisional diagnosis of threatened abortion; her request for chapter 10 discharge; and a letter dated 4 October 1978 (the date of which she apparently questions) forwarding court-martial charges against her, to include additional court-martial charges to be tried in conjunction with the original charges, by special court-martial.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in proceedings prepared to reflect the Board's original consideration of her case on 19 May 1999 (docket number AC96-08747/AR1998014079) and in a memorandum prepared to reflect the Board's reconsideration of her case on 19 March 2002 (docket number AR2001063797).

The medical documents provided by the applicant are new evidence which will be considered by the Board.

On 19 October 1978, charges were preferred against the applicant charging her with being absent without leave (AWOL) from 15 September until on or about 12 October 1978.

On or about 19 October 1978, the applicant started a "chapter" separation physical with a request for x-rays. On 23 October 1978, she underwent a chapter 10 separation physical.

On 25 October 1978, the applicant disobeyed a lawful order from a superior commissioned officer. On 30 October 1978, at 10:00 a.m., the applicant's battalion commander informed her that he was considering whether she should be punished under Article 15, Uniform Code of Military Justice (UCMJ) for this misconduct. The DA Form 2627 (Record of Proceedings under Article 15, UCMJ) noted that she had 72 hours to decide if she would accept punishment under Article 15 or demand trial by court-martial. On 30 October 1978, she signed the DA Form 2627 demanding trial by court-martial.

On 6 November 1978, the charge of disobeying a lawful order and a charge of failing to go to her appointed place of duty were preferred against the applicant.

On 6 November 1978, after consulting with counsel, the applicant voluntarily submitted a request to be discharged for the good of the service in lieu of trial by court-martial. The request noted in part that her case had not been referred to a court authorized to adjudge a bad conduct discharge.

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On 7 November 1978, the applicant was treated for and diagnosed with a threatened abortion. The Clinical Record noted that she had intermittent spotting since August 1978.

On 16 November 1978, the applicant was discharged, with a discharge under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, discharge for the good of the service in lieu of trial by court-martial.

On 19 May 1999, the Board upgraded the applicant's discharge to fully honorable and changed the narrative reason for her separation to Secretarial Authority.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the regulation in effect at the time (effective 1 February 1978) provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred regardless of whether the charges were referred to a court-martial and regardless of the type of court-martial to which the charges could be referred.

Army Regulation 635-200 in effect at the time also stated that a member who submitted a request for discharge for the good of the service under chapter 10 would undergo a medical examination.

According to the Manual for Courts-Martial, Table of Maximum Punishments in effect at the time, the maximum punishment for a 28-day AWOL was 6 months confinement and a forfeiture of two-thirds pay for 6 months; for failure to go to appointed place of duty, the maximum punishment was one month's confinement and forfeiture of two-thirds pay for one month; and for disobeying the lawful command of a superior commissioned officer, the maximum punishment was a dishonorable or bad conduct discharge, confinement for 5 years, and a total forfeiture of pay.

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. It appears that the applicant's leadership did indeed "jump the gun" in ordering her to undergo a chapter 10 medical examination prior to court-martial charges

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were preferred against her. Her Standard Form 88 is dated 23 October 1978; the offense for which a punitive discharge was authorized was not committed until 25 October 1978. However, the applicant has failed to provide evidence that this was done maliciously and not through the failure of her command to obtain legal advice first. In addition, there is no evidence to show that undergoing the medical examination was significantly detrimental to her.

2. The applicant's argument that she was denied the required 72 hours to make her chapter 10 discharge request is not supported by the available evidence. Less than 2 weeks earlier, she also had 72 hours in which to decide if she would accept nonjudicial punishment under Article 15, UCMJ or demand trial by court-martial. She made that decision in less than 24 hours at a time when it appears she was having the same medical problems (the provided Clinical Record noted that she had intermittent spotting since August 1978).

3. The "requirement" is that the soldier may take up to 72 hours to make a decision to request a chapter 10 discharge; nothing prevents the soldier from making the decision in less than that amount of time. The applicant provides insufficient evidence to show she demanded more time and was denied that additional time.

4. The applicant provides no evidence to show medical attention and food were deliberately withheld from her unless and until she signed the discharge request. It cannot be determined from the evidence provided that she was transported, ill and bleeding, under guard by bus on 6 November some 50 plus miles to her attorney's new unit. There is no evidence to show that her request for discharge was coerced.

5. The evidence shows that when the applicant requested discharge in lieu of trial by court-martial on 6 November 1978 her request was a legally available option. The regulation required only that the request could be submitted at any time after charges were preferred. There was no requirement that the charges had to be referred to a court-martial and no requirement as to the type of court-martial to which the charges could be referred.

6. 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.

7. In view of the foregoing, there is no basis for granting the applicant's request.

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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

__sk __ __rjw___ __mmb___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003088950
SUFFIX
RECON
DATE BOARDED	YYYYMMDD
TYPE OF DISCHARGE
DATE OF DISCHARGE	19781116
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	110.00
2.
3.
4.
5.
6.