MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 April 2002                   
	DOCKET NUMBER:   AR2002066619

	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. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Richard T. Dunbar		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 under other than honorable conditions (UOTHC) be changed to a medical discharge.

APPLICANT STATES:  That he was allowed to enter the Army even though he had hypertension, which later caused his kidneys to fail.  He provides his Certificate of Release or Discharge from Active Duty, DD Form 214, and his medical records as supporting evidence.

EVIDENCE OF RECORD:  The applicant's military personnel records are not available.  Information contained herein was obtained from alternate sources.

The applicant completed an enlistment physical examination on 19 June 1999 and was found to be unacceptable for enlistment due to hypertension and proteinuria.  On 20 November 1999, a medical waiver was approved.  He enlisted in the Regular Army on 19 January 2000.

On 23 May 2000, the applicant sought medical treatment for a headache.  His blood pressure was noted to be 220 over 140.  It was brought under control with medication and he stated his headache cleared.  He was hospitalized overnight for Nephrology to monitor.  He was discharged from the hospital on 24 May 2000.

On 30 August 2000, court-martial charges were preferred against the applicant charging him with being absent without leave (AWOL) from 1 June to on or about 24 August 2000. 

On 30 August 2000, after consulting with counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial.  The applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement in his own behalf.

The appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

The applicant was placed on 454 days excess leave from 13 September 2000 to 10 December 2001 when he was discharged with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  He had completed 1 year, 7 months, and 28 days of creditable active service and had 84 days of lost time. 

Army Regulation 635-200 sets forth the basic authority for the 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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-3 states that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC unless the general court-martial convening authority finds that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge UOTHC.  

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.  Once chapter 10 proceedings were started, the applicant was not eligible for referral for physical disability processing.  There is no evidence to show his medical condition was the cause, or a substantial contributing cause, of the misconduct which resulted in his separation. 

3.  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

__mkp___  __eja___  __rtd___  DENY APPLICATION

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

INDEX

CASE ID	AR2002066619	
SUFFIX		
RECON		
DATE BOARDED	20020411	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.