MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           13 July 2000                   
	DOCKET NUMBER:   AR2000039130

	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	
	Mrs. Joyce A. Hughes		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. James E. Anderholm		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:  In effect, that his discharge under other than honorable conditions be upgraded.

APPLICANT STATES:  In effect, that he feared for his life.  He was given massive doses of radiation for Hodgkin’s disease and he was convinced the radiation treatments were going to kill him.  He further states that the Army forced this therapy on him, he tried to refuse treatment but couldn’t and the only way that he could stop it was to leave by going absent without leave (AWOL).  He submits a copy of the Medical Board Proceedings and a copy of a letter from the Social Service Department in support of his application.

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

He enlisted into the Montana Army National Guard (MARNG) on 13 October 1964, for a period of 6 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 11E Armor Crewman.  On 19 February 1968, the applicant was involuntarily ordered to active duty for unsatisfactory participation effective 3 May 1968, with the 
1st U.S. Army Control Group, Fort Meade, MD for assignment to the U.S. Army Recruiting Station, Fort Dix, New Jersey.

On 4 May 1968, the applicant was reported AWOL.  He was apprehended by civil authorities in Clarksburg, WVA on 16 September 1968.  He was placed in confinement.  On 17 September 1968, the applicant was released from confinement and transferred to the Ireland Army Hospital, Fort Knox, Kentucky. 

On 7 October 1968, special court-martial charges were preferred against the applicant.  On 16 October 1968, the applicant was transferred to the Medical Holding Company, Walter Reed Army Medical Center, Washington, DC for further treatment.

While receiving treatment for Hodgkin’s disease the applicant was reported AWOL on 18 February 1969.  On 25 October 1972, the applicant ‘s military records show that he was back under military control and was medically evacuated to Walter Reed Medical Center from Fort Belvoir, VA.

On 22 December 1972, the applicant’s commander initiated separation action under the provisions of Army Regulation 635-206 for misconduct, due to AWOL.
The commander stated that although the applicant was diagnosed with Hodgkin’s disease Stage IVB, he was not deserving of anything more than an Undesirable Discharge.  The applicant worked and held a job as a machinist for over 2 years.  He had more than ample time to think and to come back to military control sooner than 3 years.  He, however, elected to be identified as a soldier only when he became acutely ill.
The applicant waived consideration of his case by a board of officers, waived personal appearance before such a board, waived representation by counsel,
and elected not to submit a statement in his own behalf.

The applicant underwent a mental and medical examination, which cleared him for separation.  He was found to be mentally responsible, able to distinguish right from wrong, and able to adhere to the right.  However, the psychiatrist noted that the applicant was depressed, under severe stress, in a panic reaction, in denial of his disease when he left the hospital and was not considered responsible for his actions.

On 4 January 1973, the appropriate authority approved the recommendation and directed the issuance of an Undesirable Discharge Certificate.

On 5 January 1973, the applicant was discharged in pay grade E-1, under the provisions of Army Regulation 635-206 for misconduct, due to AWOL with a discharge under other than honorable conditions.  He completed 1 year, 
1 month and 3 days of total active service and had 1,419 days of lost time and
1 day of confinement.

Army Regulation 635-206, in effect at the time set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the discharge of enlisted personnel for misconduct when it was determined there was substantial evidence to support a determination of desertion or absence without leave; the unauthorized absence had continued for more than 1 year; retention was not considered desirable or in the best interest of the government; and trial by court-martial on a charge of desertion or AWOL was waived or deemed inadvisable by the general court-martial convening authority.

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 requirement.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  The type of discharge given was and is still appropriate.

3.  The commander had noted that the applicant had more than ample time to think and to come back to military control sooner than 3 years.  He, however, elected to be identified as a soldier only when he became acutely ill.

4.  The evidence furnished by the applicant is not sufficient to warrant an upgrade of his discharge.

5.  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

___jlp__  __mhm___  __jea___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039130	
SUFFIX		
RECON		
DATE BOARDED	20000713	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19730105	
DISCHARGE AUTHORITY	AR635-206	
DISCHARGE REASON	A60.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.6000	
2.		
3.		
4.		
5.		
6.