MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:              1 February 2001    
	DOCKET NUMBER:    AR2000044092

	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	
	Ms. Antoinette E. Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Barbara J. Lutz		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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge, thereby allowing him to receive veterans and medical benefits.

APPLICANT STATES:  That he was directed to apply to the Board for Correction of Military Record (BCMR) since his discharge is older than 15 years.  He states that a review of his records will show that he had a verbal confrontation with an officer and was placed in solitary confinement at Fort Meade, Maryland for 
30 days.  He further states that this had a profound effect on him.  Further, during that time period he was diagnosed with a Bipolar Disorder.  He further states that he honestly believes there was no willful misconduct on his part, rather it may have been related to the “onset” of his mental condition.  He therefore feels that under current standards he would not have received the same type of discharge as he did on 5 November 1980.  The applicant also submits a copy of his DD Form 214 (Report of Separation from Active Duty), a medical opinion from his current doctor dated 1 June 2000, and two VA Forms 21-4138 (Department of Veterans Affairs Statement in Support of Claim) from his wife and a friend concerning his current medical problems, dated 8 and 10 July 2000 respectively.

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

On 20 November 1979, he enlisted in the Regular Army for 3 years, as a private first class, pay grade E-3.  He completed his basic training at Fort Jackson, South Carolina.  On 31 January 1980, he was assigned to the Naval Amphibious Base, Little Creek, Norfolk, Virginia for advanced training at the U.S. Army School of Music.

On 21 July 1980, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to stand telephone watch on 
4 July 1980.  His punishment is not a matter of record.  

On 31 August 1980, while still a trainee, he departed absent without leave (AWOL) until 3 September 1980.  On 24 September 1980, he again went AWOL until he was apprehended on 26 September 1980.  He was returned to military control at Fort Eustis, Virginia and confined.  

The applicant was charged with violation of Article 86, UCMJ, for being AWOL from 
31 August to 3 September 1980, from 24 to 26 September 1980 and for failing to go to his appointed place of duty on 27 August and daily from 4 through 7 September 1980.  He was also charged with violation of Article 91, UCMJ, for failing to obey a lawful order from two noncommissioned officers on 27 August and 30 September 1980 and for violation of Article 92, UCMJ, for failing to obey a lawful order from a commissioned officer on 30 August 1980.

On an unknown date, the applicant consulted with legal counsel and voluntarily requested discharge under the provisions of chapter 10, Army Regulation AR 635-200, in lieu of trial by court-martial.  He was advised that the offenses for which he was charged could lead to a UOTHC discharge.  He authenticated a statement in which he acknowledged that he understood the ramifications of receiving a UOTHC discharge, and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Veterans Administration.  He did not submit a statement in his own behalf.  

On 17 October 1980, the applicant underwent both a medical evaluation and a mental status evaluation.  The examining officials determined that he was mentally responsible and medically fit for separation.

His chain of command recommended approval of his request for discharge. 

On 29 October 1980, the separation authority approved his request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with a UOTHC discharge.

On 5 November 1980, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with a UOTHC discharge.  He had 11 months and 10 days of creditable service and 7 days of lost time due to AWOL.  

On 12 April 1984, the Army Discharge Review Board denied his request for an upgrade of his discharge.

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.  Army policy states that although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate.

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 applicant's voluntary request for a chapter 10 discharge, for the good of the service, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  There is no indication that he received less than competent legal counsel or that his request was made under coercion or duress. 

3.  Therefore, the type of discharge directed and the reason for discharge were appropriate considering the facts of the case.

4.  There is no probative evidence of any medical problems in his record or with his application that shows that he had any medical condition which precluded his performance of duty.  His mental and medical evaluations at the time of separation do not point to any conditions that required treatment prior to separation.  Therefore, the Board concludes that there has been no basis established which warrants a medical reason for his discharge.

5.  Determination of entitlements to veteran benefits does not rest with this Board, rather it rests with the Department of Veterans Affairs.  The applicant is advised to contact that agency on these matters.

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

__lls____  __jea____  __bjl ____  DENY APPLICATION

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

INDEX

CASE ID	AR2000045092	
SUFFIX		
RECON		
DATE BOARDED	2001.02.01	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19801105	
DISCHARGE AUTHORITY	AR 635-200/10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	A110.00	
2.	A144.0O	
3.	A123.01	
4.	A71.00	
5.		
6.