MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            12 September 2000                  
	DOCKET NUMBER:    AR2000036530

	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. Walter Avery, Jr..		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Ms. Carol Jo Suiter		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 her records be corrected to show that she received a medical discharge.

APPLICANT STATES:  That she didn’t go absent without leave (AWOL) while on convalescent leave, but remained absent upon the advice of her doctor.

In support of her request, the applicant has provided a copy of a letter written by her counsel at the time.  The letter was addressed to the commander of the Fort Knox, Kentucky Personnel Control Facility.  It states that during the third week of basic training, the applicant, sustained a broken pelvic and lower hip and that these injuries were confirmed by a physician assistant and physical therapist.  The applicant’s injuries were finally acknowledged and she was sent on convalescent leave from 8 July – 6 Aug 1999.

EVIDENCE OF RECORD:  The applicant's military records were not available.  The information herein was provided by the applicant.  

On 28 May 1999 the applicant, in the third week of training sought medical attention for soreness of ankles.

On 22 July 1999 a medical consultation report states that the applicant has incurred a fracture of the pelvis and bladder spasm due to the stress of basic training 7 weeks previously.  She was to continue treatment with Motrin.

On 29 July 1999 and 30 August 1999 x-rays were taken of the applicant’s pelvis. A doctor diagnosed that the applicant had a stress fracture of the right pelvic, which had not completely healed and recommended the applicant for an additional 30 days of convalescence.

On 16 August 1999 a letter was sent to the applicant’s father notifying him that she had been AWOL since 7 August 1999.

The record shows that the applicant requested discharge in lieu of trail by court- martial.  The request shows that she consulted with military legal counsel and declined to submit a statement in her own behalf before finalizing her request for discharge.  She also acknowledged that she might receive an under other than honorable discharge and that such a discharge could deprive her of many of her Department of Veterans Affairs benefits.

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 is authorized, a discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.

Paragraph 3-2b(1) of the regulation provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

Paragraph 4-3 of the regulation provides that an enlisted soldier may not be referred for, or continue, 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.  The applicant’s counsel states that she broke her pelvis and hip during the third week of basic training.  Such injuries would have been serious and generated medical records, an accident report and a line of duty investigation.  However, in the documents provided to the Board there is only reference to a stress fracture of the pelvis and bladder spasms.  The documents submitted indicate that the fracture was minor and was healing.  A medical discharge is provided only for those medical conditions that prevent further military service.  The applicant’s condition was not a medical condition that denied further military service, therefore her request for medical discharge must be denied.

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 reasons therefore were appropriate considering all the facts of the case.  Further, once the applicant became subject to a possible UOTHC discharge she became ineligible for disability processing.

3.  As indicated above, chapter 10 is a voluntary action on the part of an accused that has been charged with a crime punishable by court-martial and requires counseling by a military attorney before the accused is permitted to request discharge.  Therefore, it appears that the applicant requested an administrative discharge rather than risk the consequences of a trial by court-martial.  She has provided no evidence why that discharge should now be changed.

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

__cmf____  ___fne__  ___cjs___  DENY APPLICATION

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

INDEX

CASE ID	AR2000036530	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000912	
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.	144.63	
2.		
3.		
4.		
5.		
6.