MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 August 2000                   
	DOCKET NUMBER:   AR2000042454

	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. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Allen L. Raub		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 discharge be changed to a medical discharge.

APPLICANT STATES:  That the Article 15 he received was unjust because he was not absent without leave (AWOL) nor was he ever charged with being AWOL.  His discharge should be upgraded because of the findings of the medical evaluation board (MEB).  He provides a copy of the MEB findings and a statement from a Private First Class dated 12 May 1989 as supporting evidence.

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

He enlisted in the Regular Army on 5 August 1981.  He completed basic training and advanced individual training and was awarded military occupational specialty 13R (Field Artillery Firefinder Radar Operator).  On 2 August 1984, the applicant was honorably discharged for the purpose of immediately reenlisting on 3 August 1984 for 3 years.  He was promoted to Sergeant, E-5 on 4 September 1987.  On 15 August 1988, he was assigned to duties as a senior radar operator at Fort Carson, CO.

On 24 February 1989, during a three-day weekend, the applicant left Fort Carson, CO enroute to his home in Oklahoma to assist his pregnant wife in getting heat in their home.  While enroute, he fell asleep at the wheel of the car.  He sustained multiple injuries and was taken to a civilian medical facility.  Approximately 10 days later he was evacuated to Fort Sill, OK and then evacuated to Wilford Hall Air Force Medical Center in San Antonio, TX.  Because of the significance of his injuries, he was referred to an MEB for consideration for separation from active duty.

On 9 June 1989, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for misconduct.  His punishment was to be reduced to Specialist Four, E-4.  The Article 15 is not available.

On 21 June 1989, a Line of Duty (LOD) investigation found that the applicant’s accident was not in the line of duty but due to his own misconduct because he had left his duty station without the proper authority, which constituted AWOL.  
In the course of the LOD investigation, the applicant’s commander had made a sworn statement that the applicant was aware of the necessity of having an approved leave or pass in his possession before leaving the state because of a previous occasion when the commander personally saw to it that he had a pass typed up and approved by him on the spot.  The applicant had also been cited by civil authorities for not wearing his seat belt.  

On 23 June 1989, the applicant appeared before an MEB for a chief complaint of pain and instability in the left knee and right ankle since 24 February 1989.  He was diagnosed as having rectal laceration with secondary postoperative infection; posterior cruciate deficiency, left knee; significant degenerative joint disease, right foot and right ankle, possible acvascular necrosis of the talus and/or fracture of the talus on the right; and posterior tibial nerve neuropraxia, secondary to the third diagnosis.  He was given a permanent physical profile with assignment limitations of no running, jumping, physical training, and no standing over 30 minutes.  The MEB recommended that because of the applicant’s impending expiration term of service (ETS) and because of the potential for considerable long term disability and need for rehabilitation, that it would be in the best interest of the applicant and the Army that he be separated from active duty for medical reason.  He was never further referred to a Physical Evaluation Board (PEB).

On an unknown date, the American Red Cross contacted the applicant’s commander to inform him that the applicant’s wife was having complications with her pregnancy.  The applicant requested emergency leave; however, his request was denied.  On 13 July 1989, less than 30 days before his ETS, he departed AWOL.  He surrendered to military authorities on 6 November 1989.

On 14 November 1989, court-martial charges were preferred against the applicant for being AWOL from 13 July – 6 November 1989.

On 15 November 1989, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf 

On 17 November 1989, the appropriate authority approved the applicant’s request and directed he receive a discharge under other than honorable conditions.  On 22 January 1990, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge under other than honorable conditions.  He had completed         8 years, 1 month and 25 days of creditable active service and had 116 days of lost time.

On 26 June 1992, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.  On 16 June 1993, this Board denied his request for an upgraded discharge.  On 18 June 1997, this Board upgraded his discharge to fully honorable.

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 at any time after the charges have been preferred, 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 3-1 states 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 soldier reasonably may be expected to perform.  Paragraph 3-4 states that under the laws governing the Army Physical Disability Evaluation System, soldiers who sustain or aggravate physically unfitting disabilities must meet certain LOD criteria to be eligible to receive retirement and severance pay benefits.  One of the criteria is that the disability must not have resulted from the soldier’s intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.  Paragraph 4-3 states 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.

A character reference dated 11 April 1991, possibly prepared for one of the applicant’s applications to the ADRB or this Board, noted that he had been employed with the S____ Construction Company since 17 August 1990.  He had proved to be a dependable worker.  His attendance and work performance were superior.  He started with the company as a laborer and had since been promoted to a heavy equipment operator.

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.  The evidence of record shows that the applicant did not meet the criteria for referral to a PEB and possible medical retirement for two reasons.  All his injuries that the MEB diagnosed were determined to have been incurred during a period of unauthorized absence and he was separated under a regulatory provision which authorized a characterization of service of under other than honorable conditions (even though his discharge was later upgraded.)

3.  In addition, the Board notes that just eight months after his discharge the applicant was performing duties as a laborer with a construction company.  Had he remained under military control long enough to have been referred to a PEB, the PEB most likely would have found that his injuries did not make him unfit for duties as a senior radar operator.

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

__gdp___  __clg___  __alr___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042454	
SUFFIX		
RECON		
DATE BOARDED	20000824	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.01	
2.		
3.		
4.		
5.		
6.