MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           20 March 2001
	DOCKET NUMBER:   AR2000044872

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. William D. Powers		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 the characterization of service, of her spouse, a former service member (FSM) be changed to honorable.

APPLICANT STATES:  That the FSM was allowed to resign from the Army when he was mentally and physically impaired and should have been allowed to retire. She states the FSM’s period of absent without leave (AWOL) was the result of his episodes of amnesia.  She states that the checks allegedly written by the FSM were written by another soldier.  Also, the FSM was given an overdose of typhoid vaccinations which caused his amnesia and blackouts.  In support of her application she submits copies of the FSM’s mental evaluations, a certificate of death, and two telegrams indicating the soldier who wrote the bad checks.

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

The FSM’s military records were lost or destroyed in the National Personnel Records fire in 1973.  The information herein was gleaned from reconstructed records.

The FSM served on active duty from 11 July 1942 to 3 June 1946 in the rank of first lieutenant (1LT).  

The mental evaluations provided by the applicant indicated that the FSM suffered from amnesia.  His stream and content of thought, his behavior, his past personal civilian and military record all pointed to a complete splitting of his personality.
A medical procedure to aid the FSM in recalling his lost period of time was performed; however, the diagnosis was unchanged.  The prognosis remained fair for future usefulness to the Service.  The FSM was examined and the medical authorities acknowledging the FSM’s legal status recommended the best solution for the FSM would be to return to duty but was not certain whether the FSM could return to duty. 

The telegrams, dated 5 and 7 February 1945, show the rank and name Lieutenant Robert rather than the FSM’s rank and first name of Lieutenant Thomas.

The FSM resigned in lieu of court-martial, under conditions other than honorable. The court-martial charges that were preferred against the FSM were for bad checks and for being AWOL.

The FSM died on 6 November 1981.

According to the Manual for Courts-Martial, Table of Maximum Punishments, in effect at the time, the maximum punishment the FSM could have received was
6 months confinement, forfeiture of all pay and allowances, and a dishonorable discharge.

Army Regulation 605-275, in effect at the time, sets forth the basic authority for the right of a military officer to resign his office at pleasure is subject to certain restrictions growing out of his military status.  Paragraph 4 of that regulation provides, in pertinent part, that an officer whose conduct has rendered him triable by court-martial for an offense punishable by a dismissal, regardless of whether charges have been preferred, or an officer who is under a suspended sentence of dismissal, may tender his resignation for the good of the service.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considerate appropriate.

Paragraph 4c, of the same regulation provides that an officer who has submitted his resignation for the good of the service and who is to be separated from the service under conditions other than honorable, but who is hospitalized prior to separation from the service or who at the time of his terminal physical examination is discovered to have incurred a disability, will be given treatment, including hospital care if necessary, so that the diagnosis, line of duty, and appropriate disposition based on the medical merits of the case may be determined.  If it is determined that the officer should appear before an Army retiring board and the findings indicate that the officer is physically incapacitated for active service, final action will be taken by the Department of the Army upon receipt of the Army retirement board proceedings.

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 FSM chose to request an administrative discharge rather than risk the consequences of a court-martial.

2.  The applicant’s contention that the FSM was mentally and physically impaired when he voluntarily requested separation for the good of the service, to avoid trial by court-martial has been noted by the Board.  However, in the absence of evidence to the contrary, the Board must presume government regularity when the approval authority found the FSM competent to accept his resignation in lieu of trial by court-martial.  The applicant has not shown otherwise.

3.  The Board concludes that the evidence submitted by the applicant did not show the FSM’s amnesia rendered him incapacitated for service at the time of his resignation in lieu of trial by court-martial that would be reviewed by the Department for disability retirement. 

4.  The Board notes the applicant’s contention that the FSM did not write the bad checks that led to the FSM resigning in lieu of trial by court-martial.  Even though the evidence submitted by the applicant shows a first name different from the FSM, this in itself is not sufficiently convincing to the Board. 

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

_FNE___  __RJW___  __WDP___  DENY APPLICATION

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

INDEX

CASE ID	AR2000044872	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010320	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.