MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  25 May 2000
	DOCKET NUMBER:   AR2000035035

	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	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge		Chairperson	
	Mr. Kenneth L. Wright		Member	
	Mr. Ernest W. Lutz		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 records be corrected by showing the correct discharge date and by changing his discharge to a medical retirement.

APPLICANT STATES: That his discharge was illegal because he did not receive his final pay or a discharge certificate.  Further, he should have been medically retired inasmuch as he was injured in the line of duty prior to approval of request for resignation for the good of the service, and said injuries were permanently disabling.  Finally, that his resignation did not relieve the Army of the requirement to comply with the United States Code.

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

On 10 August 1986, he entered active duty for 3 years as first lieutenant, US Army Reserve.

On 8 September 1987, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty during the period 26 to 29 July 1987.  His punishment included forfeiture of $700 pay per month for 2 months (suspended until 8 March 1988).  He did not appeal.

The applicant received an adverse officer evaluation report for the period ending on 5 August 1987.  He acknowledged the report and submitted a rebuttal.

On 30 September 1987, he was suspended from flying duties pending a flight evaluation board to determine his potential for continued aviation service based on his misconduct and traits of character.  This action was rescinded on 2 October 1987.

During the period November 1987 to January 1988, he assisted the Criminal Investigation Division Drug Suppression Team by buying drugs from enlisted personnel.

On 7 December 1987, he was notified that his request to remain on active duty in a voluntary indefinite status was denied.

On 20 June 1988, court-martial charges were preferred against him for eight charges of misconduct.  They were: (1) striking a female enlisted soldier with a closed fist on 6 May 1988; (2) disobeying a lawful order (DOLO) to stay away from this female; (3) destroying personal property; (4) using reproachful words towards a female soldier; (5) having an improper, sexual relationship with a female soldier; (6) being disorderly while in uniform; (7) making false statements while under oath; and, (8) having sexual intercourse with a female soldier, not his wife.

On 11 July 1988, additional court-martial charges were preferred against the applicant.  The charges were: (1) DOLO not to telephone a female soldier on four occasions between 15 June and 6 July 1988; (2) communicating a threat to kill a female soldier; (3) communicating a threat to injure a female soldier; and, (4) endeavoring to influence a female soldier’s testimony at his court-martial during the period 15 June to 6 July 1988.

On 26 July 1988, an investigation under Army Regulation 15-6 recommended that the applicant be tried by a General Court-Martial.  The investigation revealed that he did assist the Drug Suppression Team, but only to affect the arrest of an enlisted female soldier’s husband by buying drugs from him.  Following the husband’s arrest, the applicant began an extended period of close association with the female soldier.

On 27 July 1988, the applicant voluntarily tendered his resignation for the good of the service under the provisions of Army Regulation 635-120, chapter 5, in lieu of trial by court-martial.  He received legal counsel prior to submitting this request and stated that he understood that he might receive an under other than honorable conditions (UOTHC) discharge.

On 16 August 1988, the Department of the Army Ad Hoc Review Board recommended that the applicant’s resignation be accepted and, on 2 September 1988, the Deputy Assistant Secretary of the Army approved the board’s recommendation and directed the issuance of a UOTHC discharge.

On 9 September 1988, the applicant was medically evacuated to Walter Reed Army Medical Center because he was “episodically disoriented.”  After a short stay at Walter Reed, he was medically cleared for separation.  On 16 November 1988, he was separated with a UOTHC discharge under the authority of Army Regulation 635-120, chapter 5, conduct triable by court-martial.

On 26 June 1991, this Board denied the applicant’s request to upgrade the character of his discharge from UOTHC to fully honorable; to change the reason and authority of his discharge; to correct his discharge date; and to pay him back pay and allowances.

On 27 January 1997, the Army Discharge Review Board determined that his discharge was proper and equitable and denied his request for upgrade.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provided 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 that duty, or that other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Army Regulation 635-120, then in effect, set forth the basic authority for the separation of officer personnel.  Chapter 5, of that regulation, provided, in pertinent part, that officers who had committed an offense of offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for an UOTHC discharge.

Pertinent Army regulations provide that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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 discharge was effected on 16 November 1988 and he has not shown that that date is incorrect.  Therefore, he is not entitled to a change of his discharge date from 16 November 1988.

3.  The applicant’s contentions are not supported by his records, his application, or other evidence.  His voluntary request for separation under the provisions of chapter 5, Army Regulation 635-120, 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 or that his due process rights were violated.  There is no indication that he is due any back pay and allowances.

4.  The medical evidence of record indicates that he applicant was medically fit for retention at the time of his separation.  He has submitted no probative medical evidence to the contrary.
5.  In view of the foregoing, there is no basis for granting the applicant's request.

6.  The Board has not addressed the applicant’s contention that his resignation did not relieve the Army of the requirement to comply with the United States Code.  The applicant has not specified what provisions of the US Code he believes the Army has violated.  The Board has already noted that the applicant’s separation was in conformance with applicable laws and regulations.

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

__EA__  ___KW___  __EL___ DENY APPLICATION

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

INDEX

CASE ID	AR2000035035	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000525	
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         1.110	Illegal discharge from AD	
2.		
3.		
4.		
5.		
6.