MEMORANDUM OF CONSIDERATION

		IN THE CASE OF.

		BOARD DATE:           9 September 2003                   
		DOCKET NUMBER:  AR2003085235

	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:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas A. Pagan 		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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).  

APPLICANT STATES:  In effect, that he suffered with epilepsy while on active duty and this condition led to his UD.  He now feels that the Board should consider his medical condition as factor in determining if an upgrade of his discharged is warranted.

COUNSEL CONTENDS:  In effect, counsel outlines the applicant’s contentions and his issues.  Further, counsel requests that the applicant’s contention that his epilepsy condition may have had contributed to his misconduct be assessed and that his discharge upgrade request be fairly adjudicated.  

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

On 1 June 1973, he entered active duty in the Army.  He was trained and served in military occupational (MOS) 11B (Light Weapons Infantryman), and his record shows that the highest rank he attained while serving on active duty was specialist four/E-4 (SP4/E-4).  

The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 
15 January 1975, for using disrespectful language towards a noncommissioned officer (NCO). 

On 18 July 1975, court-martial charges were preferred against the applicant for demonstrating disrespect towards a commissioned officer, using disrespectful language towards a NCO, and wrongfully communicating a threat to a NCO.

On 29 July 1975, the applicant consulted legal counsel and was advised of the basis for the contemplated trial by court-martial; the maximum allowable punishment; and the possible effects of an UD discharge.  Subsequent to this counseling, the applicant 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.  The appropriate authority approved the applicant’s discharge request on 29 August 1975, and directed that he receive an UD and that he be reduced to the lowest enlisted grade.  

On 9 September 1975, the applicant underwent a separation physical examination.  The Report of Medical Examination (SF 88) that documents this examination contains no indication that the applicant was suffering from epilepsy or any other medical condition.  The record is also void of any medical treatment records that suggest the applicant was ever treated for epilepsy or related conditions while he was serving on active duty.  

On 12 September 1975, the applicant was discharged after completing a total of 2 years, 3 months, and 1 day of creditable active military service.

On 13 November 1979, the Army Discharge Review Board determined the applicant’s discharge was proper and equitable, and it voted to deny the applicant’s request to upgrade his discharge.

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.  However, at the time of the applicant's separation the regulation provided for the issuance of an UD.

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 an upgrade of his discharge is warranted because his misconduct was a result of his suffering from epilepsy.  However, the Board finds insufficient evidence to support this claim.  

2.  The Board carefully considered the medical evidence submitted by the applicant.  While it is unfortunate that he now suffers from epilepsy, absent any indication that he suffered from this illness or its effects while he was on active duty, or that this condition contributed to his misconduct, the Board finds this factor does not mitigate the misconduct on which his discharge was based. 

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

4.  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 and that the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

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

WTM___  __TAP__  __SLP__  DENY APPLICATION

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

INDEX

CASE ID	AR200308535	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	 UD	
DATE OF DISCHARGE	19750912	
DISCHARGE AUTHORITY	AR635-200 .  .  .  .  .  	
DISCHARGE REASON	In lieu of trial by CM	
BOARD DECISION	 DENY	
REVIEW AUTHORITY		
ISSUES         1. 689	144.7000	
2. 855	144.9321	
3.		
4.		
5.		
6.