MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 February 2000                   
	DOCKET NUMBER:   AR1999027531

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Mr. Raymond J. Wagner		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 upgraded to honorable and the reason for discharge be changed to convenience of the government.

APPLICANT STATES:  That he was placed on a temporary physical profile for varicocele (varicose veins in the scrotum) which stated he should not run or march greater than ¼ mile.  However, his supervisors insisted he march to class. This was extremely painful so he went absent without leave (AWOL).  While his actions were wrong they were caused by the improper actions of his superiors in disregarding his profile.  He states that character references are provided but none were attached.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

He enlisted in the U. S. Army Reserve on 22 July 1983.  He was ordered to initial active duty for training on 6 December 1983.

On 30 January 1984, the applicant was treated for a swollen scrotum and was diagnosed with left varicocele, very mildly symptomatic.  He was prescribed a scrotal support and pain medication and placed on a temporary physical profile of no running, marching or walking over ¼ mile and no lifting over 10 pounds.  

A 22 March 1984 entry in his medical records notes he was not entitled to surgery at the time because that type of surgery was elective and the next appointment would be in mid-May.  His temporary profile was renewed and expanded to no crawling, stooping, running, jumping, marching and no standing over 15 minutes; no mandatory strenuous physical activity; no handling of heavy materials.  No overhead work, no pullups or pushups.  

The applicant departed AWOL.  When he returned to military control, he stated that he went AWOL because he was first refused an operation, then it was agreed the operation would be performed but he would have to wait 5 weeks.  He could not stand the pain for 5 more weeks.  A member of the Personnel Control Facility commented that a conversation with an officer apparently at the training installation from which the applicant departed AWOL indicated that doctors told the applicant they would perform the operation but that he would have to be taken out of the school.  The applicant opted to stay in school, stating he did not want the operation, that he wanted to finish school. 

On 6 June 1984, the applicant completed a separation physical examination and was found qualified for separation.  He also underwent a mental status evaluation and was found to have the mental capacity to understand and participate in (administrative) proceedings.

On 8 June 1984, court-martial charges were preferred against the applicant charging him with AWOL from 17 April 1984 to on or about 1 June 1984. 

On 8 June 1984, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, Chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement in his own behalf.

The appropriate authority approved the request and directed the applicant receive a discharge under other than honorable conditions.

On 10 June 1984, the applicant was discharged with a discharge under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, discharge in lieu of trial by court-martial.  He had completed 6 months and 20 days of creditable active service and had 43 days of lost time. 

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

On 2 December 1991, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.  

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.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

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 conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.
3.  The evidence of record shows that the applicant had received medical treatment at least twice for his condition.  He provides no evidence to show he was ever denied treatment.  The Board concludes that it is reasonable to expect that surgeries not required as a matter of life or death emergencies cannot always be scheduled for the ill person’s convenience.  Five weeks is not an excessive amount of time to wait to have elective surgery performed.  The applicant has provided no evidence to show that he was not given the option to have the operation performed but that he would have to be taken out of the school and he elected to remain in school.  He has provided no evidence to show it was not his decision to “stand the pain for 5 more weeks.”

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

__rvo___  __eb____  __rjw___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027531	
SUFFIX		
RECON		
DATE BOARDED	20000223	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19840610	
DISCHARGE AUTHORITY	AR 635-200, Ch 10 	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.		
3.		
4.		
5.		
6.