MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 August 1999
	DOCKET NUMBER:   AC94-07980B
				   AR1998005022

	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	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Melvin H. Meyer		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 his earlier application to correct his records by upgrading his discharge.

APPLICANT STATES:   In effect, that the discharge should be changed to physical disability because he contracted cardiomyopathy. All the charges against him were false, fabricated or exaggerated.  He was misled by his legal advisors in both the court-martial incident and the discharge.  He has improved his education and become a minister in his church.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memoranda prepared to reflect the Board's previous consideration of the case on 8 June 1994 (COPY ATTACHED).

The applicant’s contention relative to disability constitutes new argument that requires Board consideration.

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 he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision. 

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 was under charges until the discharge and was not eligible for disability processing or separation.   

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformity with applicable regulations. There is no indication that the request was made under coercion or duress.  His service was appropriately characterized by the offense for which he requested discharge rather than face trial by court martial.

3.  The applicant’s post-service activities are noted, but they are not so exceptionally meritorious as to warrant the requested relief.

4.  Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file.  It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit.  The Board has never denied an application simply because it was not submitted within the required time.

5.  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.

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

__CMF__  ___CLA_  __MHM___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC94-07980B
AR1998005022	
SUFFIX		
RECON		
DATE BOARDED	19990819	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.