MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  23 October 2001
	DOCKET NUMBER:  AR2001058891

	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. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley Powell		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Allen L. Raub		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 undesirable discharge be changed to 
show that he was separated or retired by reason of physical disability.

APPLICANT STATES:  In effect, that he was in an automobile accident prior to enlisting on active duty.  In support of his application, he submits a copy of his DD Form 214 (Report of Transfer or Discharge) and a copy of his medical records.

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

The applicant was administered an entrance medical examination on 23 February 1971, and his Standard Form 88 (Report of Medical Examination) indicated that he was qualified for induction with a 111121 profile.

The applicant was inducted on 23 February 1971, as a communications center specialist and was honorably discharged on 28 February 1971, for the purpose
of immediate reenlistment.  He reenlisted on 1 March 1971.

On 25 March 1971, he was punished under Article 15, Uniform Code of Military Justice, for being AWOL from 16 to 25 March 1971 (9 days).  His punishment consisted of a forfeiture of pay and 14 days restriction.  

Charges were preferred against the applicant on 8 December 1972, for being AWOL from 1 April 1971 to 10 January 1972 (284 days), from 26 to 30 April 1972 (5 days), and from 4 May to 1 December 1972 (212 days).

On 14 December 1972, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of AR 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if a discharge under other than honorable conditions were issued.  He also elected not to submit a statement in his own behalf.

The applicant underwent a separation medical examination on 15 December 1972, and was found qualified for separation with a 111111 physical profile.

On 28 December 1972, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate.  The applicant was discharged on 31 January 1973.  He had a total of 
6 months and 14 days of creditable service and 510 days of lost time due to AWOL.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 23 April 1973.  The ADRB determined that his discharge was proper and denied his request on 15 August 1974. 

The applicant reapplied to the ADRB for an upgrade of his discharge under the Department of Defense (DOD) Special Discharge Review Program (SDRP) on 16 June 1977.  The ADRB determined that the applicant was properly discharged and denied his request on 25 November 1977.

Army Regulation 635-200 sets forth the basic authority for 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 at any time after the charges
have been preferred submit a request for discharge for the good of the service
in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable
discharge.

The SDRP, often referred to as the “Carter Program,” was announced on 29 March 1977.  The program mandated upgrade of administrative discharges if the applicant met one of seven specified criteria to include various aspects of service in Vietnam.  Reasons for granting an upgrade under secondary criteria include age, aptitude, education level, alcohol/drug problem, record of citizenship, etc.

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

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated for reasons other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to, or coincident with separation, rendered the member unfit.

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 Board notes the applicant’s contention that he was in an automobile accident prior to enlisting on active duty; however, competent medical authorities determined that the applicant was qualified for enlistment with a physical profile of 111121.  

2.  The applicant has failed to show, or provide evidence which shows,
that he was diagnosed with any medical condition incurred while entitled to receive basic pay, which was so severe as to render the applicant medically unfit for retention on active duty.  Accordingly, the applicant was separated for reasons other than physical disability.

3.  The Board also notes the applicant’s excessive amount of lost time due to AWOL which is too serious to be excused or to warrant relief.

4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable law and regulations.

5.  The type of separation directed and the reasons for that separation appear to be appropriate considering all of the available facts of the case.

6.  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.

7.  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

__sp___  __to___  __ar_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001058891	
SUFFIX		
RECON		
DATE BOARDED	20011023	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19730131	
DISCHARGE AUTHORITY	AR 635-200  C, 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189		
2.		
3.		
4.		
5.		
6.