MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:          9 December 1999           
	DOCKET NUMBER:  AR1999021931

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Thomas D. Howard, Jr.		Member	
	Mr. James P. Steuve		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 his earlier application to correct his records by upgrading his discharge.

APPLICANT STATES:   In effect, that the combination of his medical problems and of mismanagement of them and the medication he was on caused him to go AWOL.  He submits several documents from his medical record including the report of his separation medical examination.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 3 December 1998 (COPY ATTACHED).

The applicant’s contention 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 that can not 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.

Paragraph 4-3 or the regulation provides that an enlisted soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority (GCMA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.   This authority may not be delegated.  A copy of the determination must be entered into the case file when it is forwarded.

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 he was discharged and, absent a finding by the GCMA that his physical problems caused or substantially 

contributed to the misconduct for which he was discharged, he could not have been processed for physical disability separation.  

2.  There is no medical evidence to substantiate the applicant’s contention that his medical problems caused, contributed to, or mitigated his misconduct.  Indeed his submissions in his original request argue against that conclusion.

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

__JHL  __  __TDH__  ___JPS__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC1999021931	
SUFFIX		
RECON		
DATE BOARDED	19991209	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19750122	
DISCHARGE AUTHORITY	AR635-200, ch10	
DISCHARGE REASON	A70.00	
BOARD DECISION	Deny	
REVIEW AUTHORITY		
ISSUES         1.	145.05	
2.		
3.		
4.		
5.		
6.