MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            16 AUGUST 2001
	DOCKET NUMBER:   AR2001056148

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Thomas F. Baxter		Member	
	Mr. John T. Meixell		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, disability separation or retirement. 

APPLICANT STATES:  In effect, that his discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge under honorable conditions because of his medical and psychological problems.  

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

On 22 October 1976 he enlisted in the Regular Army for a period of 3 years.

On 14 June 1977 and 14 August 1977 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for damaging military and civilian property, being drunk and disorderly, and for failure to go to his appointed place of duty.  His punishment included extra duty, forfeiture and reduction. 

On 20 June 1978 the applicant was convicted by a special court-martial of willfully disobeying a lawful order, possessing two ration cards made out in his name for the same ration period, three specifications of assault, being drunk and disorderly, and being absent without leave (AWOL) from 4 May to 12 May 1978.  He was sentenced to confinement at hard labor for six months, forfeiture and reduction to pay grade E-1. 

In July 1978, the applicant was enrolled in the Army Drug/Alcohol Program.

On 1 August 1978 the applicant accepted NJP under the provisions of Article 15, UCMJ for being drunk and disorderly on 29 July 1978.  His punishment was restriction, extra duty and forfeiture.

On 25 August 1978 he accepted NJP under the provisions of Article 15, UCMJ for being drunk and disorderly in quarters on 17 August 1978.  His punishment was restriction, extra duty and forfeiture.

On 4 October 1978, after consulting with legal counsel the applicant requested to waive his Discharge Physical Examination.   

The facts and circumstances pertaining to the applicant's discharge are not in the available records.  However, the applicant's DD Form 214 (Report of Separation from Active Duty) indicates he was discharged on 5 October 1978, under the provisions of Army Regulation 635-200, chapter 14, for misconduct, and issued an UOTHC discharge.  His  DD Form 214 indicates he had 1 year, 7 months and 8 days of active service and 96 days of lost time.     

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action was to be taken to separate a member for misconduct when it was clearly established that reasonable attempts to rehabilitate or develop the individual to be a satisfactory soldier were unlikely to succeed.  

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 40-501, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

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 to show that there was an error or injustice in this case.

2.  The evidence of record indicates the applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

3.  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. The character of the discharge is commensurate with his overall record.

4.  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

___JH __  __TFB___  __JTM __  DENY APPLICATION

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

INDEX

CASE ID	AR2001056148	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010816	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.