MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            22 February 2001
	DOCKET NUMBER:   AR2000050532

	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. Deyon D. Battle		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. Stanley Kelley		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 be upgraded to an honorable discharge.

APPLICANT STATES:  That the circumstances surrounding his request for discharge under other than honorable conditions were unfair.  He states that his problems all started when he had nonjudicial punishment (NJP) imposed against him for being insubordinate and disrespectful after he refused to be verbally abused by his first sergeant.  He further states that he was court-martialed because he defended himself while being attacked by another soldier.  He continues by stating that the immediate local authorities became outraged after he wrote statements to every authority he could think of regarding his unfair treatment and they devised a plan to get him out of the Army.  He goes on to state that his first sergeant started performing surprise inspections on his room when there was no cleanliness standards put into place and that when he failed the inspections he was charged with dereliction of duty and disobeying a lawful order.  He concludes by stating that he was told by everyone that if he was convicted of the charges he would most likely be imprisoned for a year and that his only option was to accept a discharge under other than honorable conditions.

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

On 18 November 1980, he enlisted in the Army for 3 years in the pay grade of 
E-1.  He successfully completed his training as a medical specialist.  He was promoted to the pay grade of E-2 on 10 February 1981 and to E-3 on 10 August 1981.

On 10 June 1981, NJP was imposed against the applicant for being insubordinate and disrespectful to two superior noncommissioned officers.  His punishment consisted of extra duty and a forfeiture of pay.

The applicant was furnished a Letter of Reprimand (LOR) for being disrespectful to an officer.  The LOR indicates that on 27 August 1981, he demonstrated poor and immature judgement in the way he spoke with the charge nurse on duty during his shift and that he lacked the professional medical training and experience required to handle the demands of the patients on the ward.  The LOR further indicates that he should have listened to what the nurse said and proceeded with his duties, but he chose to argue the point.  The commander stated that he had established himself as a soldier who had a great deal of difficulty understanding and carrying out the orders of his superiors and that he could rest assured that the incident would have an adverse impact on his potential and selection for promotion.  The commander also stated that he was recommending that the applicant be barred from reenlistment and that a copy of the LOR be placed in his military personnel records jacket.

The applicant acknowledged receipt of the LOR in an undated letter, which explains what he believes to be the events that led to his being furnished the LOR.  In the letter he stated, in effect, that the he found it necessary to continuously question the nurse (an officer) regarding a patient when she became irrational, agitated and confused.  He stated that she refused to acknowledge his concerns and she got angry because he continued to ask questions.  He went on to state that it appeared that the nurse was very negligent to the patient’s needs and he was waiting for the nurse to call a doctor.  In the letter he indicated that he was counseled twice regarding what had happened and he refused to sign the counseling statement.  He stated that he wanted to seek legal advice before he signed the counseling statement; however, he was denied the opportunity.  According to the applicant, he signed the counseling statement because his chain of command was prepared to initiate disciplinary action against him for being disobedient.  He stated that he was humored and insulted by the LOR because it was an attempt to punish him for an uncommitted crime and it was also was a “gift horse in disguise” because after he was discharged he could collect unemployment until he found a stable job.  

On 3 November 1981 the applicant was convicted by a summary court-martial of assaulting another soldier by striking him with his hands and feet causing injury to the soldier’s hands, face and scrotum.  His sentence consisted of confinement at hard labor and a forfeiture of pay.

The facts and circumstances pertaining to the applicant's discharge are not on file.  The Report of Transfer or Discharge, DD Form 214, indicates that the applicant was discharged on 14 January 1982, under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  He had completed 1 year, 4 months and 28 days of total active service.

There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

On 7 November 2000, the applicant submitted an Application for the Review of Discharge or Dismissal from the Armed Forces of the United States (DD Form 293) to the ADRB requesting an upgrade of his discharge.  This Board has accepted the DD Form 293 in lieu of an Application for Correction of Military Records.

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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions 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 applicant has submitted neither probative evidence nor a convincing argument in support of the request.

2.  The type of discharge directed and the reasons therefor appear to be appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted by the Board; however, they are unsubstantiated by the evidence of record.  The evidence of record clearly shows that he was constantly disrespectful and insubordinate to his superiors and he was punished for his actions.  He also assaulted another soldier and his actions caused injury to another soldier.  It appears that he chose to request an administrative discharge rather than risk the consequences of a court-martial. Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

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.  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

___tsk __  ___sk ___  ___rvo __  DENY APPLICATION

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

INDEX

CASE ID	AR2000050532	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/02/22	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1982/01/14	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	689	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  689	144.7000	
2.  708	144.7100	
3.  716	144.7300	
4.  725	144.7600	
5.		
6.