MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            31 August 2000                  
	DOCKET NUMBER:   AR2000037480

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Joe R. Schroeder		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:  Reconsideration of his earlier appeal to correct his records by upgrading his undesirable discharge to honorable. 

APPLICANT STATES:  In effect,  that he never saw his assigned military attorney before he appeared in court and asked for a continuance so that the applicant could request discharge for the good  of the service in lieu of court-martial.  He believes the requested relief is warranted because his conduct and efficiency ratings were pretty good.  He was assaulted by the first sergeant and all of the charges against him were in retaliation to his pressing charges for that assault.  The command violated his physical profile.  The command abused its discretion because he pressed charges against the first sergeant.  He would have won his case at trial by court-martial because the medical records show that he was at sick call so he could not have been on an unauthorized absence. The command altered documents to obscure the truth about the time element.  The command denied his demand for trial by court-martial. There was no need to place him in the stockade.  He was improperly held in pretrial confinement.  He was made to work with sentenced prisoners when he should have been segregated from them.  The guards and other inmates assaulted him with boots, fists, clubs, handcuffs, shackles, high-pressure water hoses and tear gas.  He was exposed to cold without clothing and half the time had no bedding.  His food was adulterated with spit and urine.  His mail was blanked out in places.  The command placed him in mortal danger and he had no choice but to escape that situation any way he could.  He was improperly represented by his military lawyer.  He contends that the previous Army Discharge Review Board and ABCMR panels reached the wrong decisions because the record supports his previous contentions.  He could not have knowingly and voluntarily requested the discharge.  He also contends that the incidents involved were not serious enough to warrant the undesirable discharge that has compelled him to a life of crime in order to survive.  He cites the social unrest of the times in the late 1960s and points to the racial unrest then prevalent and specifically to the assassination of Dr. Martin Luther King.  In effect, he contends that his deprived background mitigates his behavior.  He expected to go to war and was willing to do so even in the face of all of the protests.  

He now knows that he was wrong to fight the evil in men and credits Jesus and his own spiritual growth with his being able to become a useful and productive citizen.  Although he has had to drop out of school on occasion he has earned a general educational development (GED) certificate, has completed several training courses and  some college classes and holds eight certificates towards licensing in Washington, DC and various Southeastern states. He has been accepted at a treatment facility and intends to continue to improve his life. 

In an undated letter (received 6 July 2000) the applicant relates that he has been unable to obtain any records of his pre-service criminal record.
NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on  9 August 1995 (COPY ATTACHED).

The applicant’s submissions are new evidence and argument that require Board consideration.  

A brief in support of a previous application to this Board is date stamped as received on 17 July 1978.  It introduced the same arguments as are now offered.  Additionally, it was argued that recruiter collusion was involved in the applicant’s enlistment and that, in effect, this should have voided his enlistment.  The disposition of this application is not available.  However, this was prior to his 
1 February 1980 review by the Army Discharge Review Board and he would not have yet exhausted that administrative remedy.  

The available records indicate that among the offenses for which the applicant requested discharge in order to escape trial by court-martial was a 1 May 1970 willful disobedience of a commissioned officer to remain in the Staff Judge Advocate’s (SJA) office after he completed his appointment.  He was also charged with two other instances of willful disobedience of officers and with two more of willful disobedience of noncommissioned officers. 

The available records do not reflect the dates of confinement.  The enlisted qualification record has a crossed out entry indicating confinement started on 
4 May 1970. 

The applicant submitted copies of medical records.  On a 9 February 1970 entry showing he was seen at the dispensary with chest pains for 2 months he has highlighted the notation “bunion over Achilles.”   On 26 February 1970 he was seen for a superficial laceration on the left elbow.  He has highlighted the word laceration.  On 24 February 1970 he was seen at the battalion aid station for a callous on the right heel.  He was prescribed low quarter shoes for 30 days and referred for a podiatry exam on 17 March 1970.  He saw the same doctor on 
25 February  with the same complaint.  He visited sick call on 4, 10, and 25 March 1970.  On 30 April 1970 he had a cough and bronchitis and was medically confined to quarters for 3 days.  He returned to the clinic on 4 and 8 May with continued symptoms.  On 9 May 1970 he again complained of heel pain and his chart was noted “Re make podiatry clinic appt.”  On 18 May 1970 he was seen in the stockade dispensary with several complaints including chest pain, right ankle pain and left knee pain.  He was scheduled for an electrocardiogram.  He 

returned to the stockade dispensary on 19 and 20 May 1970.  On the 25 May he reported that he had been kicked in the back and chest by “turnkeys not in the line of duty.” He received medical attention at an unidentified location on 3 and 5 June 1970.  On 8 June 1970 he was seen at the 10th General Dispensary with complaints about sleeping.  He reported that Dr. W____ had informed him that he should have an electroencephalogram.  He again received medical attention at an unidentified location on 9 and 12 June when he complained of stumbling and falling and of difficulty sleeping.  On 13 June he complained of a bruised chest and reported that he had no mattress because he had burned it.  He was sent to the 10th General Dispensary Emergency Room then returned to the stockade.  On 17 June 1970 he continued the same general complaints and added a toothache. On 2 June 1970 at the 10th General Dispensary he reported intermittent sharp pains throughout the whole head. 

The lists of maximum punishments in the Manual for Courts-Martial as then in effect and in the version currently in effect show that conviction of a single instance of willful disobedience of a commissioned officer could result in a dishonorable discharge and 5 years confinement.  A punitive discharge is also authorized for the offense willful of disobedience of a noncommissioned officer. 

The applicant’s return address indicates that he filed his 28 February 2000 application and sent an undated inquiry received on 6 July 1970 from a correctional facility in Texas.

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 was charged with numerous offenses that could have resulted in a punitive discharge.  The record shows he could not even be trusted to remain in the SJA’s office.  Clearly confinement was warranted.

2.  There is no available corroborating evidence of violation of the applicant’s physical profile, or beating by the first sergeant.  The Board notes that there is no indication that he sought medical help as the result of that incident.  Indeed, he has not even described any injuries.  

3.  There is no evidence of record that the applicant complained of the above incident or made any report.  There is also no evidence of record of retaliation by the command, inadequate counsel or recruiter collusion.  

4.  The only evidence of record of any possible mistreatment while confined is the applicant’s own uncorroborated claim to medical personnel that “turnkeys” 

had kicked him. In that instance there is not even any notation of any bruises or abrasions and no medical follow-up was conducted.  Furthermore, the applicant did not even return to medical authorities to repeat the accusation.  

5.  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 of record that the request was made under coercion or duress.  His service was and is appropriately characterized by the offenses for which he requested discharge for the good of the service to escape trial by court-martial.  

6.  In light of the applicant’s current or at least very recent incarceration his claims of good citizenship and post-service accomplishments are clearly unconvincing.

7.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

8.  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

___SAC_  __BE____  __JRS___  DENY APPLICATION

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

INDEX

CASE ID	AR2000037480
	
SUFFIX		
RECON		
DATE BOARDED	20000831	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19700629	
DISCHARGE AUTHORITY	 AR 635-200	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A92.01	
2.	A93.15A	
3.		
4.		
5.		
6.