MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            9 January 2001
	DOCKET NUMBER:   AR2000045372

	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:

	Mr. Mark D. Manning		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Eric N. Andersen		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 under other than honorable conditions (UOTHC) discharge be upgraded to a general, under honorable conditions discharge (GD).  

APPLICANT STATES:  In effect, that there were extenuating circumstances for his misconduct that were not considered at the time of his discharge processing. First, he was raised by his grandfather who became critically ill at the time and second, he was very upset because a recruiter had promised him that he would be allowed to finish high school but after failing a General Educational Development (GED) test he heard nothing more about it.  

He explains that he went on leave to be with his grandfather when he became ill and while home on this leave he got a girl pregnant so he felt obligated to remain with her which caused him not to return to duty which placed him in an absent without leave (AWOL) status.  As time went by, he became afraid to return because he had married the girl and they had children to support. 

He also contends that he was unaware that he received a UOTHC discharge and actually believed that it was a GD.  He had an accident while AWOL and was medically evacuated to Fort Sam Houston, Texas where he was asked if he wished to remain in service or get out and he elected to get out but was unaware that he received a bad discharge.  He also claims that he has now been diagnosed with Hepatitis-C, which was the result of a blood transfusion he received while being treated at Fort Sam Houston and is in need of an upgrade to his discharge to receive medical benefits from the Department of Veterans Affairs (VA).  The applicant provides a letter form his personal physician in support of his application. 

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

On 7 August 1973, he entered the Regular Army for three years at the age of 
19.  He successfully completed basic training at Fort Ord, California and advanced individual training (AIT) at Fort Lewis, Washington.  Upon completion of AIT he was awarded military occupational specialty (MOS) 13A (Cannoneer) and he remained at Fort Lewis for his first permanent duty station.

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) shows that he attained the rank of private/E-2 (PV2), the highest rank he held on active duty, on 6 December 1973 and that the only award he received while on active duty was the National Defense Service Medal.  The service record contains no evidence that he was ever cited for an act of valor, significant achievement, or service warranting special recognition during his tenure in military service. 

His disciplinary record includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on two separate occasions.  The first on 25 September 1973 for being absent from his unit and the second on 8 April 1980 for the AWOL offense which ultimately lead to his discharge.

On 11 March 1974, the applicant was placed in an AWOL status when he failed to return from ordinary leave, on 9 April 1974 he was dropped from the rolls of the organization as a deserter, and he remained away until 29 December 1979, at which time he was returned to military control.  

On 22 December 1979, the applicant was hospitalized in a civilian hospital as a result of his involvement in a motor vehicle accident.  He was identified as an Army deserter, which resulted in his being returned to military control and being transferred to Brook Army Medical Center (BAMC), Fort Sam Houston, Texas in a patient status.  

On 9 April 1980, the applicant underwent a separation physical examination and while it showed that he had leg fractures, it also confirmed these injuries were healing as a result of being treated with a cast brace.  He was determined to medically fit for separation/retention and medically cleared for administrative separation by competent medical authority.  

The record does not include a separation packet containing all the specific facts and circumstances pertaining to the applicant’s separation processing.  However, there is a properly constituted Department of Defense (DD) Form 214 (Certificate of Release or Discharge) on file, which was authenticated by the applicant on the date of his discharge.

The DD Form 214 confirms that the applicant was discharged on 1 May 1980, under the provisions of chapter 14 Army Regulation 635-200, by reason of misconduct-desertion.  At the time of his separation he had completed only 
11 months and 9 days of creditable active military service and had accrued 
2116 days of time lost due to AWOL. 

The applicant provides a copy of a recent letter from the Burton Medical Clinic, which was signed by the applicant’s physician.  The doctor indicates that the applicant had been recently been diagnosed with Hepatitis-C.  The physician also indicated that he understood the applicant had received blood transfusions at a military medical facility several years ago, and believed there was a possibility that this was the manner in which the applicant contracted this disease. 

There is evidence that the applicant recently applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge; however, the 15 year statute of limitations had already been exceeded. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  The issuance of a discharge UOTHC 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.  The Board notes the applicant’s contentions and specifically his desire to have his discharge upgraded in order to qualify for VA medical benefits.  However, while the Board is empathetic with the applicant’s medical condition, this alone does not provide a sufficient basis for relief. 

2.  The record shows that the applicant underwent a thorough physical examination during his separation processing, which resulted in his being medically cleared for separation.  The recent diagnosis made by the applicant’s civilian physician, some 20 years later, does not call into question the original determination made by competent medical authority at the time of the applicant’s discharge. 

3.  A separation packet containing the facts and circumstances pertaining to the applicant’s separation processing and the specific events that led to his discharge from the Army are not on file.  However, the record does contain a properly constituted DD Form 214, which was authenticated by the applicant with his signature on the date of his separation.  This document identifies the reason and characterization of the discharge and the Board presumed Government regularity in the discharge process.  

4.  The evidence of record shows the applicant was discharged under the provisions of chapter 14, AR 635-200, for misconduct-desertion.  Procedurally, he would have been required to consult with defense counsel to be advised on the basis for the contemplated separation action and its effects; and to either request or waive his right to have his case considered by and to personally appear before an administrative separation board.  

5.  Lacking any evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process, and that the characterization of his service is commensurate with his overall record of service.

6.  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.

7.  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

___ena__  __mdm__  __clg____  DENY APPLICATION

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

INDEX

CASE ID	AR2000045372	
SUFFIX		
RECON		
DATE BOARDED	2001/01/09	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1980/05/01	
DISCHARGE AUTHORITY	AR 635-200 C14	
DISCHARGE REASON	Misconduct-Desertion	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.