MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 May 2002
	DOCKET NUMBER:   AR2002068799

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Roger Able		Member	
	Ms. Paula Mokulis		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 discharge under other than honorable conditions (UOTHC) be upgraded. 

APPLICANT STATES:  In effect, that his discharge should be upgraded based on his commander’s misconduct.  He states that he was diagnosed as having high blood pressure and hypertension and was forced to take an Army Physical Fitness Test (APFT) in temperatures over 100 degrees.  He states that he suffered a heat stoke while taking the APFT that resulted in him being impaired mentally and physically, which affected his judgment and memory.  He further states that he had a permanent physical profile that limited his physical training that his commander violated.

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

The applicant was honorably separated for the purpose of immediate reenlistment on 16 June 1977 after completing 2 years, 10 months, and 10 days of active military service.  He immediately reenlisted on 17 June 1977 for 3 years and continuously served until he was discharged UOTHC on 17 July 1985.

The applicant’s record shows that he served in military occupational specialty (MOS) 75D (Personnel Records Specialist) and the highest rank he attained while serving on active duty was staff sergeant/E-6 (SSG/E-6).  It also shows that during his active duty tenure he earned the following awards:  Good Conduct Medal (3rd Award); Army Commendation Medal; and the National Defense Service Medal.

The applicant’s record also shows a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on the following two separate occasions: 26 January 1984, for being absent without leave (AWOL) from 
19 January 1984 to 21 January 1984; and 21 September 1984, for being AWOL from 7 August 1984 to 16 September 1984.

On 8 December 1984, the applicant went AWOL again and returned to military control on 11 April 1985.  He was notified on 19 April 1985, that a court-martial charge was being preferred against him for the period of AWOL.  After consulting with legal counsel and being advised of the basis for the contemplated trial by court-martial, he voluntarily requested to be discharged for the good of the service/in lieu of trial by court-martial, under the provisions of chapter 10, 
Army Regulation 635-200.

On 8 July 1985, the appropriate authority approved the applicant’s separation request and directed that he be separated UOTHC and reduced to the lowest enlisted grade.  On 17 July 1985, the applicant was discharged accordingly, after having served a total of 10 years, 4 months, and 24 days of total active service and had 165 days of lost time due to AWOL.
On 13 August 1987, the Army Discharge Review Board denied the applicant’s request for an upgrade to his discharge after determining it was proper and equitable.

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 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.

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 contentions of the applicant have been noted by the Board.  However, they are not supported by the evidence submitted with the application or the evidence of record.

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The Board notes that, after consulting with defense counsel, the applicant voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense under the UCMJ.  

3.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process and that the applicant’s discharge accurately reflects his overall record of undistinguished service. 

4.  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.

5.  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

__FNE___  __RA__  __PM____  DENY APPLICATION

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

INDEX

CASE ID	AR2002068799	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/05/16	
TYPE OF DISCHARGE	( UOTHC)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR 635-200, CH 10.  .  .  .  .  	
DISCHARGE REASON	In lieu of trial by CM	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.144.9321	144.7000	
2.		
3.		
4.		
5.		
6.