MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           1 August 2001
	DOCKET NUMBER:   AR2000050793

	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. P. A. Castle		Analyst	

The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Ernest W. Lutz, Jr.		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:  Reconsideration of his previous request to upgrade his undesirable discharge or correct his records by showing that he received a medical discharge.

APPLICANT STATES: In effect, that the denial of his first request is as a result of the Board not considering all of the evidence.  He asks that the Board look favorably upon his request for an upgrade because he only served four years and four months prison time.  He had been convicted of two counts of murder in 1969 and sentenced to two 21 year terms.  Further, all of his civil rights have been restored.  He further argues that the previous Board gave no consideration to his medical conditions.  He states the Veteran’s Administration (VA) considers him totally disabled due to combat wounds and eligible for treatment.  An upgrade of his discharge could result in the receipt of compensation from the VA.

NEW EVIDENCE OR INFORMATION:  Incorporated herein are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case (AC90-08132) on 15 May 1991.

The applicant submits copies of court papers signed by the Governor of Kentucky in 1985 that restores his civil rights denied by judgement of conviction and releases him from active parole supervision.  The documentation reveals that the applicant started serving his sentence on 23 April 1969 and was discharged on parole 24 August 1973.  The applicant contends that the Board should upgrade his discharge based on the fact he only served 4 years and        4 months of his sentence for two counts of murder.

The applicant contends that the original decision to deny a medical discharge was made without review of all of his health records.  In support of his claim the applicant submits forty-one pages of VA medical treatment records from September 2000 to January 2001.  These records describe, as told by the applicant, all of his health problems to include those acquired during his time in the Army from 1968 to 1970.  Further, the records confirm that the VA has determined the applicant has the following service connected conditions but denies entitlement to monthly compensation:  Abdomen wounds (0%), liver laceration (0%), bladder laceration (0%), stomach perforations (0%), s/p colonscopy and cecostomy (0%), gastric resection (0%), an index and middle finger wound (0%), post traumatic stress disorder (PTSD) (0%), chest injury (0%), left leg wound (0%), left toe laceration (0%), right forehead wounds (0%), left knee wound (0%), malaria (0%), left 5th finger wound (0%).

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 was discharged from the Army for having been convicted by a civil court of two counts of murder and sentenced to two 21 year terms.  No evidence has been provided to show that there was an error or an injustice in the  applicant’s discharge.

2.  The applicant was convicted of two counts of murder and his release from prison after serving 4 years and 4 months did not wipe out the record of a felony conviction.  Further, the restoration of his civil rights does not wipe out guilt nor does it restore the applicant to a state of innocence in the eye of the law and the applicant has submitted no evidence to the contrary.

3.  The law and regulations cited in the Board’s prior consideration of the applicant’s case make it clear that the applicant was being processed for separation.  When the separation of a soldier is under conditions that could lead to a discharge under other than honorable conditions, then they are not eligible for physical disability processing. 

4.  The applicant’s request for reconsideration contains no new evidence or information that warrants recharacterization or a medical discharge.  Whether or not the VA provides benefits is a matter solely within the purview of that department.  It does not demonstrate an inequity or error in the applicant’s discharge.

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__ewl ___  __mm___  ___jh ___  DENY APPLICATION

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

INDEX

CASE ID	AR2000050793	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/08/01	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.00	
2.		
3.		
4.		
5.		
6.