MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           1 August 2000                   
	DOCKET NUMBER:   AR1999029721

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Deborah S. Jacobs 		Chairperson	
	Ms. Karol A. Kennedy 		Member	
	Mr. Ernest W. Lutz, Jr. 		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, the applicant requests physical disability retirement or discharge.   

APPLICANT STATES:  That the negligence of the unit he was with at Fort Campbell, Kentucky, caused him to lose his right kidney, and totally destroyed his military career.  He states that he took the discharge because they kept threatening him.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's 1 April 1992 consideration of the applicant’s request to upgrade his discharge (COPY ATTACHED).

The applicant’s medical records show that he was treated on 15 March 1982 for blood in his urine and on 16 March 1982 for suspected hemorrhagic cystitis
He was treated on 6 July 1982 for throwing up blood, and on 13 July 1982 for vomiting, nausea, and spots before his eyes.  He was referred to a medical dispensary for evaluation.  A medical supervisor at that dispensary stated that the applicant had many situational problems, e.g., in motivation squad, pending nonjudicial punishment, upcoming divorce.  He was diagnosed as having a situation anxiety, with a plan to be treated at the division mental health [clinic]. 

The medical opinion provided the 1986 Army Discharge Review Board and referred to in the 1992 Board, revealed that the applicant had been evaluated for hematuria (blood in urine) in March 1982 while in Germany, that his symptoms had apparently been resolved within a few days since the applicant did not think anything about it.  The applicant felt he was cured because he did not return for further studies; but, two to three months later he began to experience hematuria, weakness, and vomiting.  The only mention in his records that he sought medical care was in his letter to a Member of Congress when he stated that he went on sick call a few times.  There were only two sick slips in his record, one, which referred to an appointment on 16 July 1982.  The medical advisor stated that it was apparent that he was not becoming better between his AWOL on                29 July 1982 and his hospitalization on 17 September 1982.  His hospital course was well documented.  His right kidney was removed and he recovered without sequelae.  The medical advisor stated that his opinion only addressed the applicant’s version of events, in that without medical records it was impossible to comment upon his persistence in seeking medical attention or even his awareness of the seriousness of his condition.  The medical advisor stated that the applicant did not make a convincing argument that lack of medical care led him to go AWOL since he did not seek civilian care until 6 weeks after his AWOL. 

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.
  
Army Regulation 635-40 provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be
referred for, or continue, disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial
to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.

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 applicant was AWOL on two occasions, the last from 29 July 1982 until    4 October 1982, during which time he had a kidney removed at a civilian hospital. Upon his return from AWOL, charges were referred to the applicant.  He requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  His request was approved and he was discharged on 16 November 1982.  This information, although summarized in the Board’s consideration of his request to upgrade his discharge, is reiterated for clarity.

2.  The applicant has not provided any information or evidence to show that negligence on anyone’s part caused him to lose his kidney and caused his military career to be destroyed.  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment he received while in service.  As indicated above, he was AWOL for well over a month prior to the surgery to remove his kidney, was AWOL at the time of his surgery, and AWOL subsequent to his surgery.  Furthermore, he could not be referred for disability processing because of the nature of his offense which caused him to request discharge for the good of the service.  Therefore, there is no basis for physical disability retirement or separation.
 
3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

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 that 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

___dsj___  ___ewl__  ___kak___  DENY APPLICATION

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

INDEX

CASE ID	AR1999029721	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000801	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  189	108.00	
2.		
3.		
4.		
5.		
6.