MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            2 February 2000
	DOCKET NUMBER:   AR1999027900

	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. Joseph Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Lester Echols		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:  In effect, that his 1972 undesirable discharge (UD) be upgraded to a general, under honorable conditions discharge (GD)

APPLICANT STATES:  In effect, that he should never have been in the service because he had asthma and a bad back.  

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

On 1 September 1971, during his enlistment processing the applicant completed a report of medical history in conjunction with taking his entrance medical examination.  This report contains no reference to asthma or to back problems.  In fact, block 11 of this report asked “have you ever had or have you now” any of a list of conditions, and the applicant specifically answered “no” to asthma.  He then underwent a complete physical examination and was cleared to enter the Army by competent medical authority.

He entered active duty on 1 September 1971 and was assigned to Fort Leonard Wood, Missouri to attend his basic training.  On 11 October 1971, the applicant went AWOL from his unit and remained away until 22 November 1971, when he returned to Fort Leonard Wood.  He again went AWOL on 29 November 1971, and remained away until 8 December 1971, when he was returned to military control at the Personnel Control Facility at Fort, Riley, Kansas.  

On 7 January 1972, while undergoing discharge processing at Fort Riley, the applicant underwent a complete physical examination which resulted in his being cleared for separation by competent medical authority on 10 January 1972.  Although, this time the applicant did indicate in his report of medical history that he had asthma, medical authorities found no medical disqualification’s during this comprehensive examination.  

On 25 February 1972, the applicant again went AWOL and remained away until apprehended by the FBI on 4 March 1972.  He was returned to military control at Fort Riley, Kansas where discharge processing again commenced.  

The record does not include a complete copy of the separation packet containing the specific facts and circumstances surrounding the events which took place during the applicant’s discharge processing.  There is, however, a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) on file.  This document identifies the reason and characterization of the applicant’s discharge.

The DD Form 214 also shows that on 13 March 1972, the applicant was issued an UD, under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  At the time of his discharge the applicant had completed just 4 months and 5 days of credible active service, and had accrued 68 days of time lost due to AWOL.  

The evidence of record also contains two additional DD Form 214’s which indicate that the applicant had two subsequent periods of service which also resulted in bad discharges.  The first from 8 December 1972 to 29 May 1973, which ended in his receiving an UD, under the provisions of Chapter 14, 
Army Regulation 635-200 for misconduct.  At the time of this discharge he had completed 1 month and 26 days of credible active service, and had accrued 
116 days of time lost due.

The second subsequent period of service was from 9 July 1979 to 17 May 1983, which again resulted in the applicant being separated under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  His service for this enlistment was characterized as under other than honorable conditions, and at the time of this separation he had completed just 3 months and 9 days of credible active service, and had accrued 1308 days of time lost.  The record is unclear as to how the applicant was able to enlist for these subsequent periods of service; however, it is obvious he was not qualified for either enlistment.

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 are 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 for soldiers separating under this chapter.  However, at the time of the applicant’s initial separation the regulation provided for the issuance of a UD.  

DISSCUSSION:  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 board found absolutely no merit in the applicant’s claim that he was ineligible for service based on his having had asthma and a bad back.  The record clearly shows that he underwent a complete entrance medical examination after which he was cleared for enlistment by competent medical authority.  

2.  Additionally, at the time he enlisted the applicant never mentioned that he had any medical condition that would have precluded his entering the Army.  Only later, during his discharge physical examination, did he raise the asthma issue.  However, after a comprehensive separation physical examination, competent medical authority found he had no medical defects and he was medically cleared for discharge.  Therefore, the Board found no basis for relief in this case.  

3.  The evidence of record shows the applicant was discharged under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with an offense punishable under the Uniformed Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation form the Army in lieu of trial by court-martial.  In the absence of information to the contrary, the Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the process.

4.  In addition, although not raised by the applicant, the Board reviewed the circumstances of his two subsequent discharges.  Although , his record is void of the specific facts and circumstances concerning events that led to these discharges from the Army, there were two properly constituted DD Form 214’s on file that identified the reasons and characterizations of the discharges.  The Board presumed government regularity in the discharge process in both of these cases.  The Board, found these discharges were proper and equitable and reflect the overall character of the applicant’s service in both cases.  Further, the Board concluded that without the support of strong and convincing new evidence, relief would not be warranted for either of these discharges.  

5.  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.

6.  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

__cmf___  ___ja ___  ___le ___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027900	
SUFFIX		
RECON		
DATE BOARDED	2000/02/02	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1972/03/13	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	Good of the Service-In Lieu of Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 189	110.00	
2.		
3.		
4.		
5.		
6.