MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 April 2001                  
	DOCKET NUMBER:   AR2000050494

	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. Beverly A. Young		Analyst	

  The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman		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 under other than honorable conditions (UOTHC) be upgraded.

APPLICANT STATES:  In effect, that the chapter 10 discharge proceedings were unjustified.  He contends that he was not properly informed, was not given the opportunity to sign and was not given any options.  He states that his record reflects what type of soldier he was before he started confronting phobia.  He also states that he was willing to pay for his mistake and that he was having psychiatric problems at the time he was absent without leave (AWOL).  In support of his application, he submits a copy of his DD Form 214, an Under Other Than Honorable Conditions Discharge Certificate, a psychiatric evaluation, a Letter of Appreciation, two Letters of Commendation, and a Charge Sheet.

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

The applicant enlisted in the Regular Army on 13 March 1979 for a period 3 years.  He completed basic and advanced individual training and served as a medical specialist in Germany from 7 July 1979 through 10 March 1980.  

While serving in Germany, the applicant went AWOL on 11 March 1980.  He was dropped from unit rolls on 10 April 1980 and returned to military control on 19 June 1980.  As a result, charges were preferred against the applicant for this offense.

The applicant’s records contain a Disposition Form, dated 26 August 1980, which forwards the case from the Staff Judge Advocate’s Office for approval by the Commanding General of the 1st Corps Support Command at Fort Bragg, North Carolina.  However, the discharge processing papers are not contained in the applicant’s records.  

The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates that he was discharged on 10 September 1980, under the provisions of Army Regulation 635-200, for the good of the service – in lieu of trial by court-martial, and was issued an under other than honorable conditions discharge.  He had 1 year, 2 months and 20 days of creditable service with 100 days of lost time due to AWOL.

The applicant’s Report of Medical History, prepared at the time of his entry on active duty and dated 22 January 1979, shows that the applicant had been previously rejected for military service for failing a mental test in 1974.  The applicant’s Report of Medical Examination, dated 22 January 1979 shows in item 77 that the applicant was qualified for enlistment.

On 28 February 1980, the applicant was examined by a civilian psychiatrist in Puerto Rico based on referral by the applicant’s mother.  The psychiatrist diagnosed the applicant with “Undifferentiated Schyzophrenic Reaction” and recommended continued treatment with tranquilizers and the applicant must live in Puerto Rico and must be discharged from the Army.

On 25 June 1980, a physician’s assistant completed a Report of Mental Status Evaluation on the applicant.  He found the applicant’s behavior was normal and that he was alert and fully oriented and possessed a clear thinking process with normal thought content and good memory.  Based on the psychiatric evaluation by the civilian doctor in Puerto Rico, the physician’s assistant completed his evaluation by indicating the applicant had a significant mental illness and that he was unable to distinguish right from wrong, did not have the mental capacity to understand and to participate in board proceedings, and unable to meet the retention standards prescribed in Army Regulation 40-501, chapter 3.  In concluding his evaluation, the physician’s assistant requested a psychiatric consultation.  There is no evidence of such a consultation in the records available to the Board; however, the applicant’s records do contain a statement, dated 25 June 1980, that he does not “request a physical examination prior to [his] discharge from the U.S. Army under Chapter 10, AR 635-200.”  This statement is authenticated in the applicant’s own hand.

There is no indication in the applicant’s records which shows he applied to the Army Discharge Review Board within its 15-year statute of limitations.

Army Regulation 635-200 (Personnel Separations) 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

Army Regulation 635-200, in effect at the time in question, required that the General Court-martial Convening Authority will direct that a soldier be processed through medical channels if the disability is the cause or substantial contributing cause of the misconduct.

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 that the discharge processing papers are not in the applicant’s records.  However, in the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

2.  The Board considered the applicant’s contentions that discharge under the provisions of chapter 10 was unjustified and that he was not properly informed, that he did not sign the papers, and was not given any options.  However, the applicant has not presented any evidence that the discharge process was flawed or that he did not commit the offense with which he was charged. 

3.  The Board reviewed the psychiatric evaluation of the civilian doctor in Puerto Rico, dated 28 February 1980 and the Report of Mental Status Evaluation, dated 25 June 1980.  Notwithstanding these evaluations, there is no evidence that the Commanding General of the 1st Corps Support Command found that the applicant’s mental status required processing through medical channels or was the cause of the applicant’s absence without leave.

4.  Based on the foregoing, the applicant has not presented sufficient evidence to show that his discharge under other than honorable conditions was unjust or flawed or that his discharge should be upgraded due to a medical condition.

5.  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.

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

RA______  RD______  DH______  DENY APPLICATION

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

INDEX

CASE ID	AR2000050494	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010412	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19800910	
DISCHARGE AUTHORITY	AR635-200,CHAPTER 10	
DISCHARGE REASON	For the good of the Service – in lieu of trial by court-martial	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0000	
2.		
3.		
4.		
5.		
6.