MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           27 April 2000                   
	DOCKET NUMBER:   AR1999031742

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon 		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Kenneth L. Wright		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, physical disability discharge or retirement.  

APPLICANT STATES:  He was about to be discharged because of an injury to his knee, when the injustice occurred.  Since he was injured while performing his military duty, he should receive medical treatment. 

He states that he allowed a German girl to reside in his room because she did not have a place to stay.  He was trying to help her.  He did not even stay in the room with her, but stayed down the hall with another soldier [apparently a female soldier].  However, she (the German girl), in order to help him, told them he was in her room, and she fell asleep on him.  When he returned the next day, he put her on a bus and gave her some money for food.  He was picked up by some officers and was charged with carnal knowledge.  He never touched the girl, and she thanked him when she got on the bus.  The officers treated him like a prisoner of war.  He received no water or food.  He was hungry and scared after hours of interrogation and told them what they wanted to hear.  Prior to that incident he was scheduled to receive a medical discharge because he injured his knee, and the doctor wanted to perform surgery.  Now his knee is torn apart, and he has not worked since his discharge.  He served his country and was hurt in the process.  The two investigating officers tricked him, lied to him, and withheld evidence.  He has a family and it has been almost 7 years since the incident.  He is behind on child support.  His children are entitled to benefits, and he still needs surgery on his knee.  He can’t work and he has no money.  He needs help to receive disability benefits.

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

The applicant enlisted in the Army for 3 years on 15 August 1990, completed training, and in January 1991 was assigned to Berlin, Germany, as a pedestal mounted stinger crew member.

In a 26 April 1991 letter, the applicant requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He stated that he understood that he could make the request because of charges that had been preferred against him under the UCMJ, each of which authorized the imposition of a bad conduct or dishonorable discharge.  He stated that he acknowledged that he understood the elements of the offenses and that he was guilty of the charges against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge.  He stated that under no circumstances did he desire further rehabilitation or to perform further military service.  He stated that he had been afforded the opportunity to consult with counsel who had advised him of the nature of his rights.  He stated that although counsel had furnished him legal advice, the decision was his own.
NOTE:  The first page only of this request is available, and none of any succeeding actions on his request are contained in his records. 
The applicant’s records do not contain any medical information or evidence.

The applicant was discharged at Fort Dix, New Jersey on 10 May 1991, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service-in lieu of court-martial.  His character of service was under other than honorable conditions.  He had 8 months and 26 days of service.

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, paragraph 3-2b states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

That paragraph goes on to say that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Army Regulation 635-40, paragraph 4-3, provides that a member may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  However, the officer exercising general court-martial jurisdiction may abate the administrative separation if the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions, or other circumstances warrant disability processing instead of alternate administrative separation.

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 circumstances concerning the applicant’s administrative discharge are not on file.  However, the Board believes that the applicant did voluntarily request separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial.  The Board presumes administrative regularity in the processing of the applicant’s discharge.  There is nothing in the available records or in anything submitted by the applicant to overcome that presumption.

2.  There is no evidence, nor has the applicant submitted any, that shows that he had a medically unfitting disability which required physical disability processing.  Furthermore, his continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.  And, because of the nature of his discharge proceedings, he could not be referred for disability processing had he been considered unfit for service.

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 the aforementioned 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

___klw__  ___tap___  ___eb___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031742	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000427	
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.  177	108.00	
2.		
3.		
4.		
5.		
6.