RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 December 2005
      DOCKET NUMBER:  AR20050002990


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Mr. Scott W. Faught               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the reason for her separation
be changed from in lieu of trial by court-martial to by reason of a
physical disability.

2.  The applicant states, in effect, she suffers from bipolar disorder, was
on medication at the time of her separation and that this diminished her
capacity to serve.

3.  The applicant provides copies of her DD Form 214 (Certificate of
Release or Discharge from Active Duty) and 33 pages of principally post
service dependent medical records.

CONSIDERATION OF EVIDENCE:

1.  The records show the applicant entered active duty on 10 June 2002,
completed training and was awarded the military occupational specialty
(MOS) 92G (Food Service Specialist).

2.  On 19 February 2004 court-martial charges were preferred under Uniform
Code of Military Justice (UCMJ), for disrespect toward a commissioned
officer, under Article 89; two charges of willfully disobeying a direct
order from a commissioned officer, under Article 90; and four charges of
assault on four separate noncommissioned officers, under Article 91.

3.  On 20 February 2004, after consulting with counsel and being advised of
her rights and options, the applicant submitted a formal request for
discharge for the good of the service in lieu of trial by court-martial
under the provisions of Army Regulation 635-200, chapter 10.  She
acknowledged she had been advised of and understood her rights under the
Uniform Code of Military Justice, that she could receive an under other
than honorable conditions (UOTHC) discharge which would deprive her of many
or all of her benefits as a veteran, that she could expect to experience
substantial prejudice in civilian life if she received an UOTHC discharge,
and that there is no automatic upgrading or review of a less than honorable
discharge.

4.  The applicant was placed in military confinement for the period from
1430 hours on 20 February 2004 through 1700 hours on 4 March 2004.



5.  On 3 March 2004 the separation authority accepted the request for
discharge and directed she be reduced to pay grade E-1.  He directed that
she be discharged in accordance with Army Regulation 635-200, chapter 10
and receive an UOTHC discharge.  He also directed that the court-martial
charges be dismissed effective the date of her discharge.

6.  A MEDCOM Form 691-R (Medical Record – Patient Release) indicates the
applicant was admitted to the hospital on 10 March 2004.  The 26 March 2004
discharge diagnosis was adjustment disorder, malingering, antisocial
personality, borderline personality traits and pregnancy.  Included is an
entry referring to the applicant's imminent discharge.  The applicant
denied being either suicidal or homicidal and was referred to the suicide
prevention program.

7.  The applicant was discharged on 26 March 2004 under the provisions of
Army Regulation 635-200, chapter 10.  She had served 1 year, 9 months and 3
days creditable service and 13 days of lost time.

8.  A 13 September 2004 MEDCOM Form 691-R indicates she was hospitalized
for major depression from 7 – 13 September 2004.

9.  The remainder of the medical records provided by the applicant relate
to treatment for an ankle injury and low back pain, both conditions were
indicated as having been resolved.

10.  Army Regulation 40-501, paragraph 3-1, provides that the mere presence
of an impairment does not, of itself, justify a finding of unfitness
because of physical disability.  In each case, it is necessary to compare
the nature and degree of physical disability present with the requirements
of the duties the member reasonably may be expected to perform because of
his or her office, rank, grade or rating.

11.  Army Regulation 40-501, Paragraph 3-3b(1), states that for an
individual to be found unfit by reason of physical disability, they must be
unable to perform the duties of their office, grade, rank or rating.

12.  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.
13.  Army Regulation 635-40, paragraph 1-2, provides that a Soldier who is
charged with an offense or is under investigation for an offense for which
they could be dismissed or given a punitive discharge may not be referred
for disability processing.

14.  Army Regulation 635-40, paragraph 3-2b(1), states that disability
compensation is not an entitlement acquired by reason of service-incurred
illness or injury; rather, it is provided to Soldiers whose service is
interrupted and they can no longer continue to reasonably perform because
of a physical disability incurred or aggravated in service.

15.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for offenses under both Article 90 and 91.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence that the applicant's service was interrupted as a
result of a physical or mental condition incurred in or aggravated by her
service.

2.  In the absence of evidence that at the time of the discharge the
applicant was so impaired by mental, emotional, psychological or
psychiatric problems that she could not both tell right from wrong and
adhere to the right and the contention of diminished capacity does not
demonstrate an error or an injustice in the discharge.  Furthermore, the
available medical records show that she was receiving mental health
treatment at the time of the discharge, yet there was no suggestion that
the discharge should be delayed or changed.

3.  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.

4.  Therefore, the evidence is insufficient to warrant any correction of
her records.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JBG__  __RTD___  __SWF__  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  _     Richard T. Dunbar
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050002990                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051208                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Deny with Note                          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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