RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 April 2008
	DOCKET NUMBER:  AR20070014626 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Larry W. Racster

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 his discharge be changed from "In Lieu of Trial by Court-Martial" to "Physical disability."

2.  The applicant states, in effect, that he was hurt while on active duty but was discharged prior to the completion of his medical evaluation.  He further states that this discharge was upgraded to honorable, but his disability is not shown on his Certificate of Release or Discharge from Active Duty (DD Form 214).

3.  The applicant provides copies of his DD Form 214, medical records, Medical Evaluation Board proceedings, and his Department of Veterans Affairs decision for service connected disability compensation.

CONSIDERATION OF EVIDENCE:

1.  On 21 November 1997, the applicant enlisted in the Regular Army for 3 years. He completed his initial training and was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).

2.  On 7 May 1998, the applicant went to sick call.  He complained of suffering from back pain for 6 months.  He was diagnosed with muscle strain and placed on limited physical activity to include no lifting of anything heavier than ten pounds. 

2.  On 5 June 1998, the applicant was assigned for duty in the Federal Republic of Germany.

3.  On 10 December 1998, the applicant was given a temporary (30 day) physical profile due to back pain and scoliosis.  This temporary profile was re-issued on 
11 January 1999 for an additional 30 days, and again on 11 May 1999.

4.  On 26 May 1999, the applicant was given a permanent physical profile for chronic lower back pain and scoliosis.  This permanent profile was reviewed and updated twice in August 1999, pending a Medical Evaluation Board (MEB).

5.  On 19 November 1999, the applicant underwent a medical examination.  He was diagnosed with asthma, chronic low back pain, and scoliosis.  He was found qualified for consideration by an MEB.  Subsequently, an MEB found the applicant unable to satisfactorily perform the duties required of a member of his rank and station.  The MEB recommended that his case be referred to the Physical Evaluation Board (PEB) for further evaluation and recommendation for disposition.

6.  On 23 November 1999, charges were preferred under the Uniform Code of Military Justice for violation of Article 123a, for writing bad checks with the intent to deceive (thirteen specifications), and for violation of Article 134, for dishonorable failure to pay a debt.   

7.  On 4 December 1999, the appropriate authority approved the applicant’s request for discharge and directed that he be issued an Other Than Honorable Conditions Discharge Certificate.

8.  On 18 December 1999, the applicant was discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. Accordingly, he was given a Separation Program Designator (SPD) Code of KFS.  His character of service was under other than honorable conditions.  

9.  On 20 October 2006, the Army Discharge Review Board (ADRB) reviewed the applicant's request for an upgrade to his discharge.  The ADRB noted in its case report that the applicant was charged with thirteen specifications of writing bad checks in excess of $6,540.00 and one charge of failure to pay a debt.  The record does not show if the applicant consulted with legal counsel; however, a memorandum from the 1st Infantry Division Staff Judge Advocate to the Commander, 1st Infantry Division, dated 4 December 1999, indicates that the applicant’s chain of command recommended approval of the request for discharge in lieu of trial by court-martial submitted by the applicant and that he receive an other than honorable discharge.  After careful examination of the applicant’s record of service, the ADRB determined that his characterization of service was too harsh, and voted to change it to fully honorable. The ADRB also determined that the narrative reason was both proper and equitable and voted not to change it.

10.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.



11.  Army Regulation 635-40 (Active Duty Enlisted Administrative Separations) provides, in pertinent part, that a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless the investigation ends without charges; the officer exercising proper court-martial jurisdiction dismisses the charges; or the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence.  It further provides that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  Records clearly show that the applicant suffered from back pain, was evaluated by an MEB, and was referred to a PEB.  However, before completion of this process, charges were preferred under the provisions of the UCMJ.  He requested and was granted a discharge in lieu of court-martial.  Therefore, he was no longer eligible to receive a medical discharge.

2.   The ADRB reviewed the applicant's discharge and made a deliberate determination that the characterization was too harsh.  

3.   A discharge under other than honorable conditions is normally considered appropriate for a discharge in lieu of court-martial.  Even so, the ADRB voted to grant the applicant a fully honorable discharge.

4.  The narrative reason for the applicant’s discharge was correctly entered on his separation document in accordance with governing regulations.  There is no evidence of error or injustice.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JRS __  __LE  ___  _LWR  ___  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.




______ Lester Echols _____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.