MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 June 2000                   
	DOCKET NUMBER:   AR2000040488

	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. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Orville W. Troesch, Jr.		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Ms. Margaret V. Thompson		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 in lieu of trial by court-martial be changed to a disability discharge.

APPLICANT STATES:  That everything was not considered.  He has new evidence concerning his back.  He has letters from doctors stating he is limited in what he can do.  He provides no supporting evidence with his application.

COUNSEL CONTENDS:  That in the interest of justice the Board should take jurisdiction in this case and evaluate all pertinent evidence to render a fair and equitable decision.  A review of the record will reveal that the applicant has set forth clearly his contentions.

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

He enlisted in the Regular Army on 4 March 1980.

On 9 September 1980, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 27 July – 25 August 1980.  

The court-martial charges and discharge packet are not available.  The following information was obtained from the Army Discharge Review Board (ADRB) proceedings.  

On 9 March 1982, the applicant was charged with AWOL for the period 20 June 1981 – 8 March 1982. 

On 9 March 1982, the applicant waived a separation physical examination.  A mental status evaluation is not available.

On 10 March 1982, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  He elected not to submit a statement in his own behalf.

On 23 March 1982, the appropriate authority approved the request and directed the applicant receive a discharge under other than honorable conditions (UOTHC).

On 28 April 1982, the applicant was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  He had completed 1 year, 4 months and 9 days of creditable active service and had 286 days of lost time. 

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.  A discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  Paragraph 4-3 states that an enlisted soldier may not be referred for physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.

On 5 October 1988, the ADRB denied the applicant’s request for an upgraded discharge.  In 1993, the applicant reapplied to the ADRB.  He made a personal appearance before the ADRB which determined that his extreme family problems, youth, education level and good post-service record were mitigating factors in his misconduct and agreed that some compassionate relief was warranted.  On 4 February 1994, his discharge was upgraded to a general discharge under 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.  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 this requirement.

2.  Because the applicant was administratively separated under a provision that authorized a discharge UOTHC, even though that discharge was later upgraded, he was not eligible for referral to the physical disability processing system.  In addition, the applicant waived his right to a separation physical examination so it cannot be determined what his physical condition was at the time he separated.

3.  It appears the applicant may be requesting that the VA increase a disability rating that Department has awarded him.  The Army has no jurisdiction over VA disability rating decisions.  The applicant must apply for such a rating decision change through VA channels.

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

__owt___  __kan___  __mvt___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040488	
SUFFIX		
RECON		
DATE BOARDED	20000615	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.