MEMORANDUM OF CONSIDERATION

                IN THE CASE OF:   

	BOARD DATE:           3 December 1998
	DOCKET NUMBER:   AC98-11315

	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. Michael L. Engle		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Roger W. Able		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:  That his discharge under other than honorable conditions be upgraded to honorable.

APPLICANT STATES:  That he was continually having seizures, which caused him to act irrationally and to leave without permission.  He was classified as unfit for duty due to seizures and lost time.

COUNSEL STATES:  That it appears the applicant suffered a series of unfortunate incidents that rendered him incapable of making completely rational decisions.  The applicant was a devoted husband and father who wanted to keep his family together against the odds of financial hardship as well as his wife’s desertion.  It also appears that he was a cut above most young men of his age and maturity in that he married a woman who was already pregnant, and loved, accepted, and raised a child who was not his biological daughter.  It also appears as if he did make an effort to extricate himself from financial difficulty through taking an extended 30-day leave to work for his uncle.  Finally, medical evidence of record reveals that he was diagnosed with a seizure disorder which required a change of his military occupational specialty and his profile.  In light of all the evidence of record, counsel states that it is in the interest of justice to grant his request for relief.

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

He enlisted in the Army on 2 July 1970 for 3 years at 19 years of age.  He completed his initial training, was assigned to duties as a wheel vehicle mechanic, and served a tour in Vietnam.  The applicant was honorably discharged on 24 July 1972 and immediately reenlisted for another 3 years.

He served without incident until 10 September 1975 when he went AWOL.  He was apprehended by civilian authorities and returned to military control on 2 January 1976 (117 days AWOL).

Facing court-martial charges for his extended absence, on 12 January 1976, the applicant voluntarily requested to be discharged from the Army for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

The applicant consulted with counsel, acknowledged the possible effects of receiving an other than honorable discharge, and elected to make a statement in his own behalf, wherein he related, essentially, the contentions of his present counsel.

The appropriate authority approved the requested separation on 19 January 1976. On 22 January 1976 he was discharged under other than honorable conditions.  He completed 5 years, 2 months and 28 days of creditable active service and had 117 days lost time.

The applicant’s personnel records show that he had a seizure disorder and was not to be assigned to duties where a sudden loss of consciousness would be dangerous to himself or to others, such as working on scaffolding, handling ammunition, vehicle driving or working near moving machinery.

There is no evidence that the applicant applied for an upgrade of his discharge to the Army Discharge Review Board within its 15-year statute of limitations.

The Department of Veterans Affairs (VA) has determined that although the applicant’s discharge on 22 January 1976 is considered to have been issued under other than honorable conditions, he had honest, faithful and meritorious service from 2 July 1970 to 1 July 1973 and eligibility for VA purposes was established for that period.  Further that he is entitled to health care for any disabilities determined to be service connected for the period 2 July 1970 to 
22 January 1976.

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.

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 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 conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The type of discharge directed and the reason therefor were appropriate considering all the facts of the case.

3.  The applicant’s contention that his excessive period of AWOL (117 days) was the result of a seizure or seizures is not supported by the evidence of record. By his own statement at the time he went AWOL to work for his uncle to earn money for his family.

4.  The Board notes, however, that the VA has determined that his first period of service entitled him to VA benefits and that he is entitled to service-connection for any disturbances incurred while on active duty.

5.  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

__JNS___  __EW___  __RWA___  DENY APPLICATION

						Loren G. Harrell
						Director