MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 November 1999                   
	DOCKET NUMBER:   AR1999028508

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Robert G. Hinkle		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:  That his discharge be upgraded to honorable; that the reason for discharge be changed to “convenience of the Government;” that his reenlistment code be changed to RE-1; and that he be given an appropriate separation program designator (SPD) code.

APPLICANT STATES:  That under current standards he would not have received that type of discharge; his average conduct and efficiency ratings were good or pretty good; his absent without leaves (AWOLs) were minor or isolated offenses; his ability to serve was impaired by his youth, his low aptitude scores, his level of education, his deprived background, his personal problems (his mother had cancer and died 7 years later), his use of drugs and alcohol, and certain other problems (like being physically beaten); his command abused its authority when it decided to discharge him; he tried to apply for a compassionate reassignment but was told to forget it; he should have been given a medical discharge because he was not medically qualified to serve; he was threatened and feared for his life; and no one would listen to his reasons why he wanted out (he was told to “sign here and not to worry”).  He provides his DD Form 214 and his service medical records as supporting evidence.

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

He was born on 2 April 1955.  He completed 3 years of high school.  He completed an enlistment physical examination on 11 May 1973 and was found qualified for enlistment.  He had noted on his Report of Medical History that his health was good and he mentioned no medical problems.  His Armed Forces Qualification Test (AFQT) score was 33 (Category III).  

The applicant enlisted in the Regular Army on 30 May 1973.  On 5 June 1973, he was given a temporary physical profile due to a sprained elbow.  This profile was extended twice (expiring about 25 August 1973) but apparently it did not hinder his ability to continue training because he completed basic training and advanced
individual training (AIT) and was awarded military occupational specialty 11B (Infantryman).  

The applicant’s conduct and efficiency were rated as “excellent” while in basic training.  His DA Form 20, Personnel Qualification Record does not reflect any conduct and efficiency ratings for AIT or thereafter.

The applicant completed AIT on or about 2 November 1973 and was due to be reassigned to Germany.

The applicant departed AWOL 21 November – 12 December 1973 and              17 December 1973 – 27 January 1974.  He accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for this offense.  He did not appeal the punishment.  
DA Form 2173, Statement of Medical Examination and Duty Status indicates that the applicant incurred a head injury on 19 February 1974 when he was attacked in a bar and severely beaten.  Medical opinion was that he was under the influence of alcohol but he was not responsible for his injuries and his injury was determined to be in line of duty.

The applicant departed AWOL from 6 March – 8 June 1974.  

The applicant’s service medical records show he was treated a number of times for problems such as elbow pain, ear pain, sore throat, rash, a cold, right hand problem, and insect bites.

The applicant completed a separation physical examination on 17 June 1974 and was found qualified for separation.  He noted on his Report of Medical History that he was not in good health.

The court-martial charges and the discharge proceedings packet are not available.

On 13 August 1974, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial with a discharge UOTHC.  He had completed             9 months and 5 days of creditable active service and had 159 days of lost time.  He was given a reenlistment code of 3B (persons who have lost time during their last period of service; ineligible for enlistment unless a waiver is granted) and an SPD of KFS (conduct triable by court-martial).

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 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  Chapter 4 provides that an enlisted soldier may not be referred for physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

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 and, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The reason for and type of discharge given were and still is appropriate considering the length of his AWOL; the reenlistment code and SPD were and still are appropriate.

2.  The Board notes that the chapter under which the applicant was discharged is the current standard and a discharge UOTHC is still the appropriate discharge. His conduct and efficiency ratings during basic training were good, he did not receive ratings for his time in AIT and he never remained in another unit long enough to be rated.  His three periods of AWOL totaling 159 days is neither minor nor isolated.

3. The Board notes the applicant’s young age (18-years old) at the time of his enlistment but also notes that thousands of other 18-year olds manage to honorably complete their terms of service every year.  His AFQT was not in the lowest mental category and his level of education was not below normal for enlistees in the early 1970s.  There is no evidence to show that he had a deprived background nor, if he did have a deprived background, does he provide any evidence to show it resulted in his misconduct.  He provides no evidence that he had personal problems or that he tried to apply for a compassionate reassignment.  He made no mention of drug or alcohol abuse on his Report of Medical History.  

4.  The only evidence of record to show he was physically beaten is the DA Form 2173, which shows he was beaten while in a bar.  If his injuries from this beating required treatment, he did not remain under military control long enough to obtain treatment.  In addition, he was never unfit to perform his military duties because he never remained under military control long enough to be assigned military duties.  Plus, when he did return to military control he was appropriately processed for a discharge which authorized a discharge UOTHC, making him ineligible for physical disability processing.

5.  Although the Chapter 10 packet is not available, a discharge for the good of the service in lieu of trial by court-martial is a voluntary request on the part of a soldier.  The applicant had to have requested this discharge; his command just approved his request.  There is no evidence of record to show he was coerced into requesting such a discharge and he has provided no such evidence.

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

__rvo___  __rgh___  ___le___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999028508	
SUFFIX		
RECON		
DATE BOARDED	19991124	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19740813	
DISCHARGE AUTHORITY	AR 635-200, Ch 10 	
DISCHARGE REASON	A70.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.