MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 April 2003  
	DOCKET NUMBER:   AR2003084527

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Linda M. Barker		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 under other than honorable conditions (UOTHC) discharge be upgraded.

APPLICANT STATES:  In effect, he requests that his discharge be upgraded in order to allow him to receive veterans medical benefits.  He states that he was asthmatic at the time he entered the Army, and his recruiter failed to include this in his enlistment paperwork.  He claims that this condition was the reason he went absent without leave (AWOL).  He further states that he loved being in the Army and he is now disabled and suffers from disabling medical conditions that require medical care. 

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

On 16 February 1979, he enlisted in the Regular Army for 3 years.  A Report of Medical Examination (SF 88) on file in his record confirms that he underwent an enlistment physical examination on 16 February 1979, and he was found medically qualified for enlistment by proper medical authority.

The applicant’s Personnel Qualification Record (DA Form 2-1) shows that he successfully completed basic training and advanced individual training (AIT) at Fort Leonard Wood, Missouri, and he was awarded military occupational specialty 64C (Motor Transport Operator).  It also confirms that the highest rank he attained while serving on active duty was private/E-1.  His record documents no acts of valor, significant achievement, or service warranting special recognition, and it verifies that with the exception of a Marksman Marksmanship Badge (Rifle), he earned no awards or decorations while serving on active duty.  

The applicant’s record does contain an extensive AWOL related disciplinary history that began while he was in AIT.  On 16 May 1979, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 6 to on or about 8 May 1979.  In addition, the record shows that he was also AWOL on the following three other occasions:  from on or about 6 June to on or about 7 September 1979; from on or about 2 to on or about 3 October 1979; and finally from on or about 11 October 1979 to on or about 21 February 1980.  

The facts and circumstances surrounding the applicant’s discharge processing are not in the record.  However, there is a separation document (DD Form 214) on file that confirms that on 23 April 1980, he received an UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  The separation document also verifies that at the time of his discharge, he had completed 6 months and 16 days of creditable active military service and he had accrued 228 days of time lost due to AWOL.

There is no indication that the applicant requested an upgrade of his discharge from the Army Discharge Review Board within its 15 year stature of limitations.  

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 evidence of record confirms that the applicant received an enlistment physical examination that revealed no disqualifying medical condition, and he was cleared for enlistment by proper medical authority.  Thus, the Board finds insufficient evidence to support the applicant’s contention that he suffered from a disabling medical condition that existed prior to his enlistment and that impaired his ability to serve.  

2.  The applicant’s record is void of the specific facts and circumstances surrounding his discharge processing.  However, it does confirm he was charged with an offense that was punishable under the UCMJ with a punitive discharge.  It also contains a properly constituted DD Form 214, which identifies the reason and characterization of the applicant’s discharge.  Therefore, the Board presumes Government regularity in the discharge process. 

3.  The evidence of record confirms that the applicant was discharged under the provisions of Chapter 10, Army Regulation 635-200, in lieu of court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense under the UCMJ.  

4.  In the absence of information to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the Board finds that the applicant’s discharge accurately reflects the overall quality of his relatively short and undistinguished record of service.  Thus, while empathetic with his current medical condition, the Board finds this factor is not sufficiently mitigating to warrant an upgrade to his discharge at this time. 

5.  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.

6.  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

__rjw ___  _bje_____  ___lb ___  DENY APPLICATION

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

INDEX

CASE ID	AR2003084527	
SUFFIX		
RECON		
DATE BOARDED	2003/04/08	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	1980/04/23	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	In Lieu of Court-Martial 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	110.0000	
2.		
3.		
4.		
5.		
6.