MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 December 2001                   
	DOCKET NUMBER:   AR2001054353

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	
	Mrs. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Thomas E. O’Shaughnessy, 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:  In effect, that his honorable discharge (HD) be changed to a medical discharge.

APPLICANT STATES:  In effect, that he was not given due process and his rights were violated.  His discharge should have been a medical discharge because his patterns of misconduct were caused by his medical condition.  He need his discharge change so that he can receive proper medical treatment and obtain all rights due him.  In support of his application the applicant submits a copy of a medical evaluation transcribed in German and a copy translated in English.

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

On 3 June 1980, the applicant enlisted in the Regular Army for 3 years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 15D10 (Lance Missile Crew Member).  On 11 March 1983, the applicant reenlisted for an additional 4 years.  The highest pay grade he achieved was pay grade E-5.

On 23 August 1984, while assigned to a unit in Germany the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for operating a passenger car, while drunk.  His imposed punishment was a reduction to pay grade E-4 and a forfeiture of $462.00 pay per month for
2 months.

The applicant’s record shows that he enrolled in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  On 20 September 1984, the applicant was disenrollment from ADAPCP, after successfully completing 26 hours of awareness/education classes.  

On 12 October 1984, the applicant was informed that his U.S. Army Europe civilian driver’s license and his military driver’s license were revoked as a result of his drunk driving charge.  The notification of this action was provided to the U.S. Military Community Activity, NEU-ULM Transportation Motor Pool (TMP).  He was restricted from using all TMP vehicles.

The English version of the medical evaluation shows that applicant was hospitalized for approximately 3 days in January 1985.  He was diagnosed with Depressive Syndrome and Suspected Circulatory Disregulation.

On 23 January 1985, the applicant was counseled by his commander concerning his acts of misconduct.  The applicant was recommended and was approved for a rehabilitative transfer to another unit in Germany.  The applicant was provided with a letter of acceptance.  Orders were issued reassigning the applicant to the 1st U. S. Army Field Artillery Detachment, 252nd U. S. Army Artillery Group, Germany.  On 28 January 1985, the applicant’s new commander notified the applicant’s former commander of his refusal to retain the applicant.  

On 21 October 1985, the applicant’s commander notified the applicant that he was permanently disqualified from the Personnel Reliability Program.  The commander further stated that the applicant was not qualified to perform the duties required by his MOS.

On 22 October 1985, the commander notified the applicant that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  The commander’s recommendation was based on the applicant’s record of misconduct, which indicated a pattern of disregard and disrespect for authority and his two driving while intoxicated offenses.  The applicant was advised by legal counsel of the basis for the contemplated separation action and the rights available to him, he waived consideration, personal appearance and requested military counsel.  He elected to submit a statement in his own behalf; however, his statement is missing from his record.

A mental and physical evaluation was conducted, he was found fit for separation. The mental evaluation also indicated that the applicant had no physical or mental defects sufficient to warrant separation through medical channels.  He was mentally responsible, able to distinguish right from wrong, and adhere to the right.  The applicant’s medical record is not available.

On 29 October 1985, the applicant accepted his an NJP for operating a motor vehicle, while drunk.  His imposed punishment was a reduction to pay grade E-2 and a forfeiture of $200.00 pay. 

The applicant’s commander requested a screening interview due to his subsequent driving while intoxicated incident.  On 5 November 1985, the applicant was declared a rehabilitation failure.

The appropriate authority approved the recommendation and directed the issuance of an Honorable Discharge Certificate.  On 5 December 1985, the applicant was honorably discharged in pay grade E-2, under the provisions of Army Regulation 635-200, Chapter 14, for a pattern of misconduct with a HD.
He had completed 5 years, 6 months and 3 days of creditable active service.

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 of misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

Army Regulation 625-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  In pertinent part, it states that an enlisted soldier may not be referred for physical disability processing when action has been started under any regulatory provision, which authorized a characterization of service of under other than honorable conditions.

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 evidence of record shows that the applicant’s discharge was based on his misconduct.  The evidence of record does not substantiate the applicant’s allegations that he was not afforded due process and that his rights were violated.  

3.  The evidence of record also shows that applicant waived his rights for consideration by an administrative board and he waived his rights to personal appearance before an administrative board. 

4.  There is no evidence in the available records nor has the applicant supplied any to show he had medical problems that would have warranted medical processing.  His mental and physical evaluation cleared him for separation.  His signature on the evaluation forms indicated that he was in agreement with the findings.  In fact his only comment was that he was receiving therapy for lacerations on his right ankle due to an automobile accident.

5.  Therefore, 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

__kak___  __reb___  __teo___  DENY APPLICATION

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

INDEX

CASE ID	AR2001054353	
SUFFIX		
RECON		
DATE BOARDED	20011211	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19851205	
DISCHARGE AUTHORITY	AR635-200, Chapter 14	
DISCHARGE REASON	A60.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	144.6000	
2.		
3.		
4.		
5.		
6.