MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           27 September 2001                  
	DOCKET NUMBER:   AR2001056938

	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	
	Mr. Edmund P. Mercanti		                         Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Mr. Eric N. Andersen		Member	
	Mr. Thomas E. O'Shaughnessy		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 for unsuitability be corrected to a medical discharge.  In addition, he requests that his DD Form 214, Armed Forces of the United States, Report of Transfer or Discharge, be corrected to show that he was in pay grade E-2 at the time of his separation, and to show that he was awarded the Marksmenship Badge with Expert Rifle Bar.

APPLICANT STATES:  While on active duty he contracted viral menengitus, rubella and neuroses.  Those medical defects should have warranted a medical discharge.  

In support of his application he submits a letter from a a physician who stated that he has provided treatment for the applicant for several medical conditions for which he initially was treated for in the Army.  The physician opines that the applicant should be rated 100 percent disabled.

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

He was inducted on 24 August 1966 and was awarded the military occupational specialty of cook and was advanced to pay grade E-2 on 28 October 1966.

On 8 February 1967 the applicant accepted nonjudicial punishment under Article 15, UCMJ, for being AWOL from 4 to 8 February 1967.  His punishment consisted of 14 days of restriction and 14 days of extra duty.

On 2 June 1967 the applicant pled and was found guilty by a Special Court-Martial for being AWOL from 6 March to 6 May 1967.  His sentence consisted of a reduction from pay grade E-2 to E-1, 60 days restriction, and a forfeiture of $64.00 a month for 3 months.  However, the convening authority of that court-martial determined that when the applicant’s defense counsel stated that the applicant may have been mentally ill and not responsible for his actions, the defense counsel raised a possible defense which rendered acceptance of the guilty plea improper.  The convening authority continued that the proper procedure would have been for the court, on its own motion, to change the plea from guilty to not guilty.  Based on that assessment, the convening authority set aside the guilty finding by the court-martial and authorized a re-hearing.

On 17 August 1967 the applicant was notified by his commander that he was recommending that he be discharged due to unsuitability and of his rights in conjunction with that recommendation.  That applicant waived all his rights.

On 15 August 1967 the applicant’s commander submitted a recommendation to discharge the applicant.  That recommendation was approved by the appropriate authority and the applicant was issued a General Discharge Certificate  on 23 October 1967.  He had 1 year and 6 days of creditable service and 53 days of lost time.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  There is no evidence to show that the applicant qualified with a rifle.  As such, the Board finds no reason to grant that portion of his request.

2.  His request for a medical discharge cannot be properly addressed without the applicant’s medical records.  Since his medical records were not contained in his Military Personnel Records Jacket, the Board has no alternative but to deny that portion of his request also.

3.  The applicant’s request for his DD Form 214 to reflect that he was in pay grade E-2 is with merit.  While the applicant’s court-martial reduced him to pay grade E-1, the findings and recommendation of that court were set aside.  As such, the applicant was never reduced in grade.  However, correcting the applicant’s DD Form 214 is an administrative matter and does not require the authority of the Board.
  
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

___rvo___  ___teo __  ___ena__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR2001056938	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010927	
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.		
2.		
3.		
4.		
5.		
6.