MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            24 May 2000                  
	DOCKET NUMBER:   AR1999028297

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller		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 Bad Conduct Discharge (BCD) be changed to a disability discharge.

APPLICANT STATES:  That his aneurysm went undiagnosed despite complaints of a headache on sick call on two Army bases over a period of two years.  He contends that his 1SG punished him for going on sick call.  In support of his application, he submits X-rays, medical records from the University of Iowa Hospitals and Clinics, medical records from St. Luke’s Hospital Emergency and Trauma Center and statements from Life Investors Insurance Company of America.

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

The applicant enlisted in the Regular Army on 8 February 1984 for a period of 3 years.  He served as a medium helicopter repairer in Korea from 27 November 1985 through 4 December 1986.  He was promoted to pay grade E-4 and was honorably discharged on 5 February 1987.  He reenlisted on 7 April 1988 for a period of 5 years.

On 22 November 1989, the applicant was convicted by a special court-martial for going from his place of duty on 28 July 1989; for being absent without leave (AWOL) from 3 September 1989 to 29 September 1989; for striking a superior noncommissioned (NCO) officer on 2 October 1989; for willfully disobeying a superior NCO on 2 October 1989; for wrongfully using marijuana between 14 July 1989 and 17 July 1989; and for wrongfully using cocaine between 14 July 1989 and 17 July 1989.  He was sentenced to be discharged from the service with a bad conduct discharge, forfeiture of $400 per month for 4 months, confinement for 4 months, and reduction to pay grade E-1.

On 18 December 1989, the sentence was approved and executed, except for that part of the sentence adjudging forfeiture of $400 per month for 4 months was suspended for 6 months, at which time, unless the suspension was sooner vacated, the suspended part of the sentence was remitted without further action. The U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 30 July 1990, the sentence having been affirmed pursuant to Article 71 (c) having been complied with, the portion of the sentence pertaining to the bad conduct discharge was ordered to be executed.

On 29 August 1990, the applicant was discharged with a bad conduct discharge. He completed 2 years, 2 months, and 10 days of his current enlistment and a total of 5 years, 2 months, and 8 days of active military service.  He had 72 days of lost time due to AWOL and confinement.

On 12 May 1999, the Army Discharge Review Board (ADRB) denied the applicant’s request for upgrade of his discharge.

There is no evidence or indication in the applicant’s records which shows he suffered from an aneurysm while on active duty.

In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the Army Review Boards Agency (ARBA) medical advisors.  The applicant acknowledged the ARBA advisory opinion, but did not provide substantive information in rebuttal.

The advisory opinion noted that there was no evidence of sick call complaints for a headache in the available medical documentation.  The advisory opinion also noted that the applicant was court-martialed and discharged from the service and that in accordance with Army Regulation 635-40, paragraph 4-2, an individual may not be referred for, or continue disability processing if under sentence for dismissal or punitive discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed.

Paragraph 4-1 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that a member who is charged with an offense under the Uniform Code of Military Justice (UCMJ) or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or 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 which cannot 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.  

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(s), it is concluded:

1.  The Board noted the applicant’s contention that his aneurysm went undiagnosed despite complaints of a headache.  However, service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  Therefore, there was no medical basis for a disability or “medical” discharge.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge with a Bad Conduct Discharge (BCD) were affected in accordance with applicable law and regulations.  As a result, the applicant was not eligible for disability processing because he was charged with offenses under the Uniform Code of Military Justice at the time of his separation which resulted in a punitive discharge and dismissal.

3.  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.

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

JNS_____  MDM___  MW______  DENY APPLICATION

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

INDEX

CASE ID	AR1999028297	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000524	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19900829	
DISCHARGE AUTHORITY	AR635-200,Chapter 3	
DISCHARGE REASON	As a Result of Court-Martial, Other	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.3100	
2.		
3.		
4.		
5.		
6.