MEMORANDUM OF CONSIDERATION

IN THE CASE OF 

BOARD DATE:          22 April 1999                   
DOCKET NUMBER:  AR1999015570

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwrightr		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Thomas A. Pagan		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 of the Board's previous denial of his request by upgrading his discharge, changing the reason to entry level separation(ELS) with uncharacterized service, or by granting him physical disability separation. 

APPLICANT STATES:  In effect, that he had less then 180 days of service at the time his discharge action commenced and hence he should have been released under the ELS program.  Further, the applicant continues to aver that he first started exhibiting signs of a psychiatric condition while on active duty, that he was not properly diagnosed or treated, and hence warrants a disability separation.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 31 January 1990 (COPY ATTACHED).

The applicant’s issues and arguments are virtually identical to his prior requests, however, he does submit additional medical documents in regards to his post service care for a psychiatric condition.

The applicant’s contention that he had less then 180 days of service at the time his discharge action commenced and hence he should have been released under the ELS program constitutes new argument that requires Board consideration. 

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

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 that made the decision. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 of that regulation sets forth the standards and provisions for the characterization of a soldier’s period of service.  In pertinent part, section 3-7c describes the reason for issuance of an Under Other Than Honorable Conditions discharge as a significant departure from the conduct expected of a soldier.  Section 3-9a states, in pertinent part, that an entry-level separation will be uncharacterized except when characterization Under Other Than Honorable Conditions is warranted and is authorized.

Chapter 10 of the above regulation provides 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.

Chapter 11 of that same regulation provides for the separation of personnel in an entry-level status for unsatisfactory performance or conduct as evidenced by inability, lack of reasonable effort or a failure to adapt to the military environment.  These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty.  However, nothing in this chapter prevents separation under another provision of this regulation when such separation is warranted.  An uncharacterized separation is mandatory under this chapter, except when characterization Under Other Than Honorable Conditions is authorized and warranted. 

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 had charges pending at the time he requested discharge in lieu of court-martial under the provisions of AR 635-200, Chapter 10.  These charges would have barred him any consideration for a physical disability discharge even if a disability had been found to have existed at that time.

2.  It was within the separation authority’s discretion as to whether or not to grant the applicant’s request for a Chapter 10 discharge, to proceed with a court-martial, to process the applicant under the provisions of Chapter 11 or to discharge him under Chapter 14 for misconduct.  It is noted that an UOTHC is authorized under all three administrative discharge provisions.

3.  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.

4.  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

__INW__  __EB____  __TAP___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999015570	
SUFFIX		
RECON		
DATE BOARDED	19990422	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	191	
2.	177	
3.		
4.		
5.		
6.