MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           15 March 2000                   
	DOCKET NUMBER:   AR1999028530

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Van B. Cunningham		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 undesirable discharge be upgraded to honorable or in effect, physical disability discharge or retirement.  

APPLICANT STATES:  That his service was above average; however, due to external factors that psychologically affected him he was unable to continue performing his duties.  He requested a psychological examination and his request was unjustly denied.  Had he received psychological help he would have made a career of the Army.  He was also not afforded the opportunity for an administrative hearing.  His conduct and efficiency ratings were good.  His record of promotions shows that he was a good soldier and he had received a prior honorable discharge.  Medical, physical, and psychiatric problems impaired his ability to serve.  When he returned from overseas, he could not adjust to duty in the United States.  He requested a mental evaluation, but his request was denied.

The applicant submits with his application character references from five individuals who attest to his good character, his willingness to help others, his industriousness, his trustworthiness, ethical behavior, and loyalty to friends, family, and country.  He also submits a copy of his college transcripts.

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

The applicant was inducted into the Army on 8 June 1971, completed training, and in November 1971 was assigned to an artillery battalion in Germany as a field wireman.  He was promoted to pay grade E-4 on 7 March 1972.  On          15 June 1972 he successfully completed the 3d Infantry Division NCO Academy.
On 31 January 1973 he received a certificate for his loyal performance of duty with the REFORGER IV umpire group.  On 9 March 1973 the applicant reenlisted in the Army for 6 years.  On 11 May 1973 he completed a 40 hour REDEYE refresher course, and in June 1973 completed an explosive demolition course.  

The applicant returned to the United States and was assigned to an artillery battalion as a cannoneer at Fort Riley, Kansas in December 1973.  He completed an atomic projective assembly course and on 8 March 1974 received a letter of commendation for being the honor graduate of that course.

On 14 June 1974 the applicant went AWOL.  He surrendered to military authorities at Fort Sill, Oklahoma on 29 July 1974 and was assigned to the personnel control facility at Fort Sill on that date.  On 9 August 1974 the applicant received nonjudicial punishment under Article 15, UCMJ, for his AWOL.

The applicant was AWOL from the personnel control facility on 12 August 1974.  He was apprehended by civil authorities and returned to military control at Midwest City, Oklahoma on 2 October 1974.

An order published by Headquarters, Fort Sill, shows that the applicant was discharged on 21 October 1974 and that he received an undesirable discharge.  A certification of military service issued on 27 January 1978 shows that the applicant received a discharge under conditions other than honorable on           21 October 1974. 

The applicant’s DD Form 214 of 21 October 1974 is not available, nor is there a record of administrative discharge proceedings.  Nor is there any information or evidence regarding the applicant’s physical or mental condition at the time of his discharge.

The applicant did submit a request to the National Personnel Records Center on 4 December 1998, in which he asked for all records pertaining to his chapter     10 discharge on 21 October 1974.

A 1999 VA medical report indicates that the applicant was diagnosed with dysthymic disorder, major depressive disorder, recurrent, with mood congruent psychotic features, and borderline personality features, and that his history suggested a chronic course of psychological difficulties beginning around the time of his second military discharge, and that it was likely that those difficulties had been exacerbated by multiple life stressors (e.g., divorce, loss of family members).  His history suggested longstanding difficulties with adjustment as evidenced by multiple failed marriages, difficulties maintaining employment, and repeated difficulties with anger-control.  It was recommended that the applicant be referred for a psychiatric evaluation for medication, among other recommendations. 

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. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

That regulation provides the procedures for requesting a discharge under the provisions of chapter 10 of the aforementioned regulation, and states in pertinent part that commanders will ensure that a soldier is not coerced into submitting a request for discharge for the good of the service, that the soldier will be given a reasonable time to consult with counsel, that consulting counsel will advise the soldier concerning the elements of the offense charged, the rights available to him, and the type of discharge normally given under the provisions of chapter 10. If, after consulting with counsel, the applicant elects to submit a request for discharge for the good of the service, he will sign a written request certifying that he has been counseled, that he understands his rights, and that he understands the nature and consequences of the under than honorable discharge that he might receive.  If the soldier requests a medical examination, then he must also have a mental status evaluation, and the reports of both those examinations must be forwarded with his request to the separation authority. 

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Army Regulation 635-40, paragraph 1-2, provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for, or continue, disability processing.

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.  The applicant has indicated in his request for records, that he was discharged under the provisions of Army Regulation 635-200, chapter 10, and the Board believes that he did request a discharge for the good of the service under the provisions of chapter 10, and that he made this request to avoid the court-martial and the punitive discharge that he might have received.  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 character of the discharge is commensurate with his overall record.

2.  The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.  There is no information or evidence, nor has the applicant provided any, that he had a medically unfitting disability which required physical disability processing.  And because of the nature of his administrative discharge, he could not be referred for disability processing had he been medically unfit for retention or separation. 

3.  The Board has taken note of the applicant’s good post service conduct as evidenced by the letters of support he has submitted with his application, and by his transcript showing his educational achievements.  However, none of these factors, individually or in sum, warrant the relief requested. 

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

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

___rvo___ ___mkp__  ___vbc__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999028530	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000315	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.	110.00	
3.		
4.		
5.		
6.