MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            4 August 1999                  
	DOCKET NUMBER:    AR1999024511

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. George D. Paxson		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 be corrected to a medical retirement.

APPLICANT STATES:  That he was physically unfit when he was on active duty.  However, his medical (psychiatric) condition was not diagnosed at that time.  He contends that the Army was remiss in not convening a Physical Evaluation Board (PEB) in his case. 

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

He enlisted on 1 July 1983, was awarded the military occupational specialty of fire support specialist, and was promoted to pay grade E-4.

On 31 October 1984 court-martial charges were preferred against the applicant for being AWOL from 12 to 16 October 1984 and again from 24 to 25 October 1984; for disobeying a lawful order; and for disobeying a lawful command.

Thereafter the applicant requested discharge in lieu of trial by court-martial.  That request was approved by the appropriate authority and he was discharged under other than honorable conditions on 21 November 1984.

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.

Army Regulation 635-40 (Physical Evaluation for Retention or Separation) paragraph 4-3, provides that an enlisted soldier whom is the subject of elimination action that might result in a discharge under other than honorable conditions may not be processed for medical retirement or discharge.

The Manual for Courts-Martial, R.C.M. 916, provides that it is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts.  Mental disease or defect does not otherwise constitute a defense.  The accused is presumed to have been mentally responsible at the time of the alleged offense.  This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  There is no evidence that the applicant had a physically unfitting condition when he was on active duty.  However, his physical fitness has no bearing on his case.  He was precluded from being considered for medical retirement due to the fact that he was pending discharge under other than honorable conditions.

2.  In addition, there is no indication that he was not mentally competent (because of a psychiatric condition) when he committed his court-martial offenses.

3.  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

__fkm ___  _inw____  __gdp___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024511	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.