MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        

                  BOARD DATE: 30 October 2003
                  DOCKET NUMBER: AR2003090021

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Curtis L. Greenway		Chairperson
Mr. Ernest W. Lutz		Member
Mr. Larry C. Bergquist		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: In effect, that the undesirable discharge (UD) her husband, a former service member (FSM), received be upgraded to an honorable discharge.

APPLICANT STATES: In effect, that her husband suffered from a Post Traumatic Stress Disorder (PTSD) and had asked for help for this condition while he was still serving. She claims that her husband was in the process of upgrading his discharge at the time of his death. She states that in 1976, he was told that if he kept a job for a period of time he could get his discharge upgraded. She states that she believes that her husband’s discharge was inequitable because he suffered from a severe PTSD while he was still in the service. She claims that he would come home on weekends and attempt suicide based on the troubles he had during the week at Fort Hood, Texas. She claims he did not get treatment for his condition and got no help from either the chaplain or chain of command. She states that her husband was a good person and he loved to talk about the Army, but one day a year after he left the Army he came home and killed himself. In support of her application, she submits her husband’s death certificate.

EVIDENCE OF RECORD: The FSM’s military records show:

On 10 July 1974, he enlisted in the Regular Army and entered active duty for four years. The FSM’s Personnel Qualification Record (DA Form 2-1) shows that he successfully completed basic training and advanced individual training (AIT) at Fort Knox, Kentucky, and was awarded military occupational specialty (MOS) 11D (Armor Reconnaissance Specialist). It also shows that upon completion of training, he was assigned to Fort Hood, Texas, and the highest rank he attained while serving on active duty was private/E-2 (PV2).

On 20 February 1975, the FSM departed his unit at Fort Hood, Texas without authority and was placed in an absent without leave (AWOL) status. He remained away until 27 February 1975. On 3 March 1975, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for this offense. His punishment included a reduction to private/E-1 (PV1).

On 11 March 1975, the FSM again departed AWOL and he remained away until 28 April 1975. On 29 April 1975, he went AWOL again and remained away until 29 May 1975. On 30 May 1975, a charge sheet (DD Form 459) was prepared that preferred a court-martial charge against the FSM for these two specifications of AWOL.

---

On 9 June 1975, the FSM consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, the possible effects of an UD, and the procedures and rights available to him. Subsequent to this counseling, the FSM voluntarily requested discharge in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.

In his request for discharge, the FSM acknowledged he was guilty of the charge against him or of a lesser included offense that also authorized the imposition of a punitive discharge. He further acknowledged his understanding that if he received an UD he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also indicated that he understood he could face substantial prejudice in civilian life because of his UD.

On 19 June 1975, the appropriate authority approved the FSM’s separation request and directed that he be issued an UD.

On 24 June 1975, the FSM completed a Report of Medical History (SF 93) in conjunction with his undergoing a separation medical examination. In this form, he stated that he was in good health and he raised no medical problems that would have required treatment prior to his separation.

A Report of Medical Examination (SF 88) is on file that documents the FSM’s separation medical examination of 24 June 1975. A normal finding is recorded in Item 42 (Psychiatric) of the clinical evaluation portion of this form. Further, other than an entry dealing with the FSM’s distant vision, there are no physical or mental conditions noted in Item 74 (Summary of Defects), where any disqualifying condition could be expected to be recorded. This document also confirms that the FSM was medically cleared for separation by competent medical authority.

On 4 August 1975, the FSM was discharged after completing a total of
10 months and 11 days of creditable active military service and having accrued
106 days of time lost due to AWOL and confinement.

There is no evidence that the FSM or the applicant applied to the Army Discharge Review Board for upgrade of the FSM’s discharge within its 15-year statue of limitations.

---

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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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 contention that her deceased husband’s discharge was inequitable because he suffered from a PTSD, a condition for which he received no treatment or help, was carefully considered. However, there is insufficient evidence to support this claim.

2. The evidence of record confirms that the FSM indicated that he was in good health in the SF 93 he completed in conjunction with his separation medical examination. Further, there is no indication that he raised any medical issues at that time. The separation medical examination report on file confirms that his psychiatric condition was normal and there are no disqualifying or serious medical or psychological conditions noted in this medical report. The SF 88 also confirms that the FSM was cleared for separation by competent medical authority.

3. The evidence of record further confirms that the FSM was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, and that after he consulted with legal counsel, he voluntarily requested an administrative discharge in lieu of court-martial.

4. The record shows that all requirements of law and regulation were met, the rights of the FSM were fully protected throughout the separation process, and the character of the FSM’s discharge accurately reflects his overall record of service. As a result, there is not a sufficient evidentiary basis to support the requested relief.

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

__CLG__ __EL___ __LB___ DENY APPLICATION

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

---

INDEX

CASE ID	AR2003090021
SUFFIX
RECON
DATE BOARDED	2003/10/DD
TYPE OF DISCHARGE	UD
DATE OF DISCHARGE	1975/08/04
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In lieu of court-martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 360	144.0000
2.
3.
4.
5.
6.