MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            21 December 2000
	DOCKET NUMBER:   AR2000042506

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Ms. Gail J. Wire		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 request that his undesirable discharge (UD), issued under other than honorable conditions (UOTHC), be upgraded to either a general, under honorable conditions discharge (GD) or an honorable discharge (HD). 

APPLICANT STATES:  In effect, that he received psychiatric treatment and prescribed pharmaceutical intervention while on active duty that was never considered during his separation processing. 

COUNSEL CONTENDS:  In effect, that they continue to support the applicant’s contentions that an upgrade of his discharge is warranted.  Counsel opines that a review of the applicant’s sparse records provides no basis for a conclusion that the applicant’s 1 year, 5 months, and 9 days of active service was considered in granting the type of discharge he received.  Given regulations allow for members applying for discharge for the good of the service to be granted a GD based on their overall character of service and because this cannot be established in the applicant’s case, clemency should be granted.  Further, regulations also provide for medical and mental status evaluations for members separating for the good of the service.  If it cannot be shown that the applicant was afforded this right, it would again be appropriate to grant clemency based on possible improprieties in the discharge process. 

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's consideration of his case on 28 October 1998, docket number 
AC 97-10552.

While the applicant’s military records were not available to this Board for review, there is an extensive record of the facts and circumstances related to this case contained in decisional documents published by both this Board and by the Army Discharge Review Board (ADRB), as outlined in the 28 October 1998 decisional document issued by the Board, these facts are not contested and were heavily relied upon by this Board during this latest review of the case. 

The evidence of record does include a Department of Defense (DD) Form 
214 (Armed Forces of the United States Report of Transfer or Discharge), which was issued to and authenticated by the applicant on 9 September 1970, the 
date of his discharge.  This document confirms that he entered active duty on 
2 December 1968 and that he was separated on 9 September 1970, after completing 1 year, 5 months, and 9 days of creditable active military service, and having accrued 120 days of time lost due to AWOL.  It also verifies that he was discharged, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.

There is no indication in the available records or in the applicant’s case history that he was ever recognized for any acts of valor, significant achievement or service warranting special recognition during his tenure in service. However, there is an extensive disciplinary record that confirms his acceptance of nonjudicial punishment (NJP) on five separate occasions, a conviction by special 
court-martial, and a history of absent without leave (AWOL) related misconduct as follows:  16 to 21 June 1969; 20 to 25 February 1970; 22 March to 2 April 1970; 10 to 12 April 1970; 17 April to 30 June 1970; and 1 to 19 July 1970.  

His established military medical history shows that he was referred by a chaplain for evaluation by a psychiatrist on 19 March 1970 because he exhibited signs of depression caused by family troubles and was looking for a way to get home.  The examining psychiatrist indicated that the applicant was worried about sending money home to his mother and suspected that his wife was seeing other men, and opined that, while the applicant was depressed, there was no evidence of thought disorder or psychosis.  He prescribed Thorazine and recommended a follow-up.  

On 6 April 1970 the applicant was taken to the emergency room for a suspected overdose of Thorazine.  The examining physician indicated that the applicant claimed to have taken 30 of the pills and that he was faking unconsciousness.  He also indicated that the applicant’s commander confirmed that the applicant had threatened to take the pills to keep from going to the field.  He opined that the applicant’s previous complaints were not valid, that he was malingering, and that he should be returned to his unit for administrative action.

On 10 April 1970, the applicant again went AWOL until 13 April 1970.  On 4 May 1970 he plead guilty and was convicted by a special court-martial for both malingering and AWOL.  As a result he was sentenced to a bad conduct discharge, confinement at hard labor for 3 months, and reduction to the pay grade of E-1.  On 13 August 1970 the convening authority suspended that portion of the sentence adjudging a bad conduct discharge for the period of confinement and thereafter until the applicant was discharged, unless sooner vacated. 

After consulting counsel, while under a suspended bad conduct discharge, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.  He completed a statement attesting to his understanding that he might be discharged UOTHC and that he understood the implications attached to such a discharge.  On 18 August 1970, the appropriate authority approved his request for and directed that he be issued an UD.  On 9 September 1970, he was discharged accordingly.

On 15 February 1972, 16 May 1980, and 7 July 1981,  the ADRB denied requests from the applicant that his discharge be upgraded.  On all three of these occasions the ADRB found that both reason and character of the applicant’s discharge were proper and equitable. 

On 22 December 1982, this Board denied a request from the applicant that his discharge be upgraded based on their being no evidence to his contentions.  On 28 October 1998, this Board again reviewed an application for an upgrade to
his discharge and found that his voluntary request for separation was administratively correct, in conformance with applicable regulations, and that 
the type of discharge directed was appropriate.  During this particular review of the case, the Board’s Medical Advisor opined that there was no indication that the applicant had a physical or mental condition that would have prevented him from performing his duties and that there was no basis for a medical separation.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation provides, in pertinent part, that a soldier who is under a suspended sentence of a punitive discharge may submit a request for discharge for the good of the service.  It further provides that a discharge UOTHC is normally considered appropriate; however, at the time of the applicant's separation the regulation provided for the issuance of an UD.

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 contentions of the applicant and his counsel have been noted by the Board.  However, these claims are neither supported by the evidence submitted with the application nor the evidence of record, and the Board finds they lack merit. 

2.  The evidence of record confirms that the discharge process was accomplished in accordance with applicable law and regulation, and that the applicant’s service was appropriately characterized based on his overall record of service. 

3.  The applicant requested discharge under the provisions of chapter 10, 
Army Regulation 635-200, only after he consulting counsel and being advised of the basis and effects of the contemplated discharge.  The Board notes no procedural error in the discharge process that jeopardized the applicant’s rights and therefore, concludes that the reason and character of his discharge was both proper or equitable.

4.  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.

5.  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.

6.  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

__ewl ___  __kak___  ___gw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000042506	
SUFFIX		
RECON	1998/10/28	
DATE BOARDED	2000/12/21	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	1970/09/09	
DISCHARGE AUTHORITY	AR 635-200 C10	
DISCHARGE REASON	Good of the Service	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.