MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            1 June 2000
	DOCKET NUMBER:   AR1999028248

	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. Carl W. S. Chun		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. James C. Hise		Chairperson	
	Mr. Raymond V. O’Connor Jr.		Member	
	Mr. Melvin H. Meyer		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 essence, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 

APPLICANT STATES:  In effect, that he was harassed while on active duty and his harassment led to him being unjustly discharged.  He submits 29 documents on his behalf, to include a statement as to his reasons for entering the service at a young age (family hardship); a request to the Board to find an individual who could explain his 1-day period of absence without leave (AWOL) in l980; various items of correspondence with the Department of Veteran Affairs (VA) between l982 and 1998 concerning multiple claims for medical benefits from that Agency, which have essentially been denied; a Federal court appeal and denial; and matters concerning his recent good post service accomplishments.

COUNSEL STATES:  The applicant’s counsel makes no additional contentions.

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

That on 21 April 1980, he enlisted in Regular Army for a period of 4 years and training in military occupational specialty (MOS) 62E (Heavy Construction Equipment Operator).  

On 22 August 1980, he was assigned to Fort Hood, Texas.  On 2 March 1981, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, was imposed against him for disobeying a lawful order of a noncommissioned officer on 24 February 1981.  His punishment included reduction from pay grade E-2 to pay grade E-1, forfeiture of $100.00 pay, extra duty and restriction.

He was absent without leave (AWOL) from his unit between 2-3 December 1980.  There is no further evidence concerning this period of AWOL in the available records.  

On 15 October 1981, court-martial charges were preferred against the applicant for being AWOL from 31 August-5 October 1981.  On 16 October 1981, he consulted with legal counsel and requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.  He was advised that the offenses for which he was charged could lead to a UOTHC discharge.  He authenticated a statement with his own signature in which he stated that he understood the ramifications of receiving a UOTHC discharge.  He did not submit a statement in his own behalf.

On 16 October 1981, a mental status evaluation revealed that the applicant had no psychiatric condition, he was mentally responsible.  In accordance with chapter 3, Army Regulation 40-501, he met retention standards.  He elected not to undergo a physical examination prior to separation.

On 27 October 1981, his unit commander recommended separation with a UOTHC discharge.  On 5 November 1981, competent authority approved his request. 

On 4 December 1981, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with a UOTHC discharge.  He had completed 1 year, 6 months and 7 days of active military service and he had 
38 days lost time due to being AWOL. 

Since 1982, the applicant has been attempting to obtain medical benefits for a thrombophlebitis condition in his right leg which he claimed was service connected.  In fact, he claims that his right knee was injured while on active duty in an accident in the motor pool and he went home to decide what to do about the injury, and he remained AWOL.  The injured leg was not bothering him at the time of discharge, but the phlebitis condition developed in the right leg in April l982, shortly after his discharge.  The DVA initially found that his condition was not service connected and that his discharge was “dishonorable” for VA benefits. In l994, his condition was recognized as being service connected, but he was only eligible for medical treatment for that “one” medical condition, but not for other VA benefits.  His discharge remained “dishonorable.”  Claims to the Court of Veteran Appeals and the Board of Veteran Appeals have also been denied, essentially for the same reasons.  Only if the military service discharge should be changed (upgraded) would the DVA have a basis to reconsider their position.  

On 24 May 1984, the applicant personally appeared before the Army Discharge Review Board and he was denied a request for an upgrade of his discharge.

On 3 April 1985, the Army Board for Correction of Military Records denied the applicant’s request for a medical discharge.

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.  Although, an honorable or general discharge was authorized, a UOTHC discharge was then considered appropriate.

Title 10, United States Code, at chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.  However, a disqualifying medical condition existing prior to entrance into active service is not a basis to determine eligibility for a medical discharge.

Title 38, United States Code, section 310 and 331, permits the DVA to award compensation for a medical condition(s) which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical fitness for further military service.  The DVA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for DVA benefits based on an evaluation by that agency.

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.  The type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

3.  The Board has taken into consideration the applicant’s contention that harassment led to his being discharged.  There is nothing in the available record and he has provided no probative evidence that substantiates his contention. 

4.  Even if he felt he was being harassed, he had many legitimate avenues through which to obtain assistance without committing the AWOL offense which led to his separation.

5.  Further, he met medical retention standards and he waived a medical evaluation at the time of discharge.

6.  The additional documents that the applicant provided do not provide a basis for upgrading the discharge to the characterization that he is requesting.

7.  The fact that the DVA, in its discretion, has recognized a medical condition as being service connected is a prerogative exercised within the policies of that agency.  It in no way affects his discharge from active duty.

8.  This Board is not an investigative agency and is unable to obtain addresses of former service members.

9.  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

__jch____  __rvo___  __mhm __  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999028248	
SUFFIX		
RECON		
DATE BOARDED	20000608	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE	19811204	
DISCHARGE AUTHORITY	AR 635-200, CH10	
DISCHARGE REASON	Administrative Discharge Conduct Triable by Court-Martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70.00	
2.		
3.		
4.		
5.		
6.