MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:        30 December 1998      
	DOCKET NUMBER:   AC98-12807
				    AR1998012356

	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. Loren G. Harrell		Director	
	Ms. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Sherri V. Ward		Member	
	Mr. Van B. Cunningham		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 his discharge under other than honorable conditions (undesirable discharge) be upgraded to honorable.

APPLICANT STATES:  That the commander who recommended his separation “was biased and prejudicial.”  He notes that he sustained severe internal injuries after being run over by an armored personnel carrier and that the incident was never fully investigated.  He states that his medical problems prevented him from participating in training at that he requested “to be discharged...due to their [his chain of command’s] violation of [his] profile not to participate in any physical or strenuous activities.....”  He states that “to this day [he is] unable to do any strenuous activities and also suffer[s] from emotional distress including nightmares.”  He indicates that “given the injustices done in [his] case [he is] left to endure severe pain, nightmares, depression and the yearning for relief.”  In support of his request he submits several letters indicating he has been a good citizen and recently completed course work towards a college degree.

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

He enlisted on 2 June 1980 for a period of 3 years.  He successfully completed basic and advanced individual training and was assigned to Fort Riley, Kansas as an infantryman in October 1980.  On 23 October 1980 he departed AWOL and remained AWOL until 2 November 1980.  As a result of his AWOL he was punished under Article 15 of the UCMJ.

In January 1981 the applicant was punished under Article 15 of the UCMJ for failing to go to his appointed place of duty and for sleeping on his post.

On 18 January 1981 the applicant sustained “bilateral hem-pneumothorax with contusion to the right kidney” when an armored personnel carrier, which had stopped at a water point and was backing up to maneuver a position to proceed forward, backed over the applicant.  The informal line of duty investigation concluded the applicant “apparently grabbed for the back door latch, causing it to fly open and the SM to slip to the ground in the path of the backing carrier.”  The investigation concluded there was no misconduct or negligence involved and his injuries were determined to be in the line of duty.

The applicant was hospitalized following the accident and was issued a temporary profile, which was scheduled to expire on 1 April 1981.  On 20 March 1981 the applicant was placed in an AWOL status when he failed to return from convalescent leave. He returned to military control on 5 May 1981 and was convicted by a summary court-martial on 1 June 1981.  In addition to the AWOL 

charge the applicant was also convicted of leaving his guard post without authorization and disobeying a NCO.  His punishment included confinement for 30 days.

While in confinement the applicant was punished under Article 15 of the UCMJ for disobeying a NCO who had instructed him to “pick up [a] water hose and continue to water the plants....”

Documents contained in the applicant’s file indicate that he reported to the “cadre office” on 25 June 1981 stating that he wanted a discharge.  When questioned about his reason, the applicant responded that “he didn’t want to go through with the training program.”  

On 26 June 1981 the applicant was referred for evaluation and the evaluating official noted the applicant was not motivated to participate in training because he was “preoccupied with concerns for his pregnant wife who is living in the West Indies.”  The evaluating social worked noted there was no apparent personality disorder but “there is probably some cultural features that will make his adjustment difficult.”

On 1 July 1981 the applicant’s unit commander initiated action to administratively separate him for frequent incidents of misconduct.  The applicant acknowledge receipt of the proposed separation, consulted with counsel and waived his attendant rights, including the right to submit a statement on his own behalf.

The medical history, which he submitted for his medical examination for separation, indicated he had recently undergone surgery as a result of the January 1981 training accident.  However, the examining physician found him qualified for separation with a physical profile of 1 1 1 1 1 1.

A mental health evaluation, conducted on 4 August 1981, found the applicant fully alert and oriented, his memory good, and his thought process clear and normal.  It determined the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right.

The appropriate separation authority approved the recommendation for discharge and directed that an undesirable discharge be issued.  
On 6 August 1981 the applicant was separated under the provisions of Army Regulation 635-200, chapter 14-33b(1) for frequent involvement in incidents of a

discreditable nature with civil or military authorities.  At the time of his separation he had completed 11 months and 13 days of active Federal service with 82 days of lost time (58 days AWOL/24 days confinement).

In 1983 the Army Discharge Review Board unanimously denied the applicant’s petition to upgrade his discharge.  In 1998, however, the Army Discharge Review Board voted to change the reason of the applicant’s discharge from frequent involvement in incidents of a discreditable nature to misconduct (Army Regulation 635-200, paragraph 14-12b), although they unanimously again denied his request to upgrade the character of discharge.

Army Regulation 635-200, paragraph 14-12b provides for the administrative separation of soldiers for a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline.  A discharge under other than honorable conditions is normally appropriate for soldiers discharged under this chapter.

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 allegation regarding violation of rights is unsupported by the evidence of record.

2.  The applicant’s discharge was appropriate considering his accumulation of nearly 60 days of AWOL, conviction by summary court-martial, and records of non-judicial punishment, all within barely a year of his entry on active duty.

3.  The discharge proceedings were conducted in accordance with laws and regulations applicable at the time.  The character of the discharge is commensurate with the applicant’s overall record of military service.

4.  There is no evidence, in the records available to the Board, which substantiates the applicant’s claim that his medical problems contributed to the conduct which resulted in his discharge.

5.  The applicant’s post-service accomplishments are noted.  By themselves, however, they do not outweigh the seriousness of the offenses and do not provide an adequate basis upon which the Board would grant relief.

6.  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 the aforementioned requirement.

7.  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

__gdp___  __svw___  __vbc___  DENY APPLICATION

						Loren G. Harrell
						Director