MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 April 2000
	DOCKET NUMBER:   AR1999029405

	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.

	Ms. Antoinette Farley		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Barbara J. Ellis		Member	
	Mr. James P. Steuve		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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable or a general discharge.

APPLICANT STATES:  That he was injured while in the service and over the years his injuries have gotten worse.  He states he is unable to work due to the type of discharge he received, thereby making him ineligible for treatment by the Veteran Affairs Medical Center.  

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

On 6 January 1978, he enlisted in the Regular Army for 3 years.  On 3 March 1978, he completed basic training at Fort Knox, Kentucky.  He was then transferred to Fort Benning, Georgia, where he began advanced individual training (AIT) in military occupational specialty (MOS)11B00 (Infantryman).  

On 14 April 1978, while in AIT, he received his first nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 8 to 13 April 1978.  His punishments included reduction to pay grade E-1, restriction for 7 days to his company area and 7 days of extra duty.  

On 25 May 1978, he received his second NJP for being AWOL from 7 to
20 May 1978.  His punishment was to forfeit $92.00 pay.

On 2 June 1978, the applicant completed AIT and was awarded MOS 11B00.  On 7 July 1978, he received 3 weeks of basic airborne training, which changed his MOS to 11B1P.  On 28 July 1978, he was assigned to Fort Stewart, Georgia, for duty in his MOS.

On 21 August 1978, the applicant was listed as absent without authority for overstaying a 3 day pass.  On the evening of 21-22 August 1978, the applicant was seriously injured in an incident wherein he was struck by an automobile while hitchhiking on a street in Metter, GA.  He was admitted to military medical facilities on the morning of 22 August and received extensive medical treatment for a cerebral contusion, compound fracture to the right wrist with multiple contusions, lacerations and abrasions.  He was returned to limited duty on 
11 October 1978.  

On the evening of 15 December 1978 , the applicant was arrested by civil authorities for driving under the influence.  He was held and tried by civil court and was fined $250.00 and was sent to a defensive driving course.  He returned to military control on 21 December 1978.  He was assessed 6 days lost time by military authorities for this incident.

On 27 December 1978, a Line of Duty determination found that the injuries incurred by the applicant on 22 August 1978 were not in the line of duty – due to his own misconduct.

On 6 February 1979, he received NJP for failing to go to company orderly room duty on 25 January 1979.  His punishments included extra duty for 14 days, restriction to the brigade area for 14 days and reduction to pay grade E-1, the latter punishment suspended until 7 May 1979.

On 19 February 1979, the applicant received a mental status evaluation and was cleared for separation.

On 9 March 1979, he received NJP for failing to go to guard duty on 3 March 1979.  His punishments included reduction to pay grade E-1, forfeiture of 
$97.00 pay, extra duty for 14 days, and restriction to the brigade area for 
14 days. 

On 3 April 1979, he received NJP for disobeying a lawful command from a superior commissioned officer and two noncommissioned officers; for being drunk on duty on 22 March 1979; for failing to go to extra duty, seven specifications from 13 - 23 March 1979; and breaking restriction on 18 March 1979.  His punishments included forfeiture of $198.00 pay per month for 
2 months, 45 days extra duty and restriction to the unit area for 30 days.

On 24 April 1979, the applicant was arrested by civil authorities for reasons unknown.  He was returned to military control on 16 May 1979 and underwent a medical operation for repair to his wrist due to nonunion of a bone in the wrist.  He was returned to civilian confinement on 22 May where he remained until he  returned to military control on 25 June 1979.  

In the meantime, a bar to reenlistment was initiated by his unit commander for the NJP actions on 6 February, 9 March and 3 April 1979; seven instances of writing checks with insufficient funds to both military and civilian agencies and businesses starting in October 1978; and several counselings for other relatively minor military infractions. This bar was not approved by the staff of the general court-martial convening authority until 20 June 1979.  There is no evidence that he submitted a statement objecting to the bar or to appeal the bar once it was approved.  

On 15 May 1979, the applicant’s command notified him of its intent to separate him under the provisions of Chapter 14, Army Regulation 635-200, for misconduct - frequent incidents of a discreditable nature with civil or military authorities and an established pattern showing dishonorable failure to pay just debts.

On 21 May 1978, while recovering from his medical operation, he received legal counseling concerning the separation action.  He acknowledged receipt of the notice of the proposed separation action, that he waived a hearing by a board of officers, that he understood that he could receive a UD and the impact of such a characterization on his military and veterans benefits and he did not submit a statement in his own behalf.  

On 4 June 1979, he was medically cleared for separation after a physical examination.

On 25 June 1979, the applicant returned to military control from his period of civilian confinement.  On 26 June 1979, he went AWOL and remained in that status until his discharge.  

On an unknown date in late June or early July 1979, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14 for his various incidents of misconduct and directed issuance of a UOTHC discharge.  He waived further rehabilitative efforts.  

On 26 July 1979, the applicant was discharged, in absentia, with a UOTHC discharge, under the provisions of Army Regulation 635-200, chapter 14, for misconduct-frequent incidents of a discreditable nature with civil or military authorities and an established pattern showing dishonorable failure to pay just debts.  He had completed 1 year, 2 months, 28 days of creditable service and 
had 86 days due to AWOL and civilian confinement.  

On 7 March 1984, this Board denied his request for change in the reason for his discharge to a medical discharge (COPY ATTACHED).  In connection with this review, his case was reviewed by the Office of the Surgeon General which found that he was medically cleared for discharge.  

On 20 January 1987, the Army Discharge Review Board denied his request for upgrade of his discharge.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time of the applicants service, established policy and prescribed the procedures for separating members for misconduct.  Specific categories included minor disciplinary infarctions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and extensive periods of AWOL.  At the time of the separation action other categories of misconduct included frequent incidents of discreditable nature with civil or military authorities and failure to pay just debts.  Action was to be taken to separate a member for misconduct when it was clearly established that rehabilitation was impractical or unlikely to succeed.  A UOTHC discharge was normally considered appropriate, but a general or an honorable discharge could be awarded.

The Department of Army is not authorized to make determinations of entitlement to veterans benefits, to include eligibility for medical benefits.  Rather this determination must be made by the Department of Veteran Affairs (DVA) accordance with Federal law and regulations of that agency.  

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 the aforementioned requirement.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

3.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and VA benefits.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

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

5.  This Board has previously reviewed his case and determined that he was medically fit to continue to serve and that there was no basis to change his reason for discharge to a medical reason.

6.  The applicant’s current medical condition is unfortunate, but he must continue to work with the DVA for any veteran benefits to which he is entitled.  

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

___rgh__  __bje____  ___jps___  DENY APPLICATION

				Karl F. Schneider
				Director, Army Review Boards Agency

INDEX

CASE ID	AR1999029405	
SUFFIX		
RECON		
DATE BOARDED	20000412	
TYPE OF DISCHARGE	MISCONDUC-UOTHC	
DATE OF DISCHARGE	1979 07 26	
DISCHARGE AUTHORITY	AR .635-200 CH14 	
DISCHARGE REASON	A67.50	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A71.00	
3.	A75.00	
4.	A92.23	
5.	A55.00	
6.		

W