MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:            8 August 2000
	DOCKET NUMBER:   AR1999032215

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Ronald E. Blakely		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 undesirable discharge (UD) be upgraded to a general discharge. 

APPLICANT STATES:  In effect, that believes that he was unjustly discharged when he refused knee surgery in 1976.  He submits a letter written in his own behalf in support of his request.  The letter states that he left his unit in an absent without leave (AWOL) status to care for his elderly mother.

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

That prior to the enlistment under review he enlisted in the United States Marine Corp on 22 July 1971.  On 18 August 1971, a medical evaluation board (MEB) determined that he had “congenital heart disease with pulmonic stenosis or patient ductus arteriosus” that existed prior to enlisting.  The MEB recommended that he be discharged.  He was honorably discharged on 26 August 1971.

On 14 September 1972, he was inducted into the Army of the United States for a period of 2 years.  He was assigned to Fort Leonard Wood, Missouri, for basic training.  He had two periods of AWOL from 23-28 September and from 3-8 October 1972. 

On 29 September 1972, nonjudicial punishment (NJP) actions were imposed against him under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL from 23-28 September 1972.  The exact date that he received the NJP for his second period of AWOL is not available.  Neither of the punishments imposed are a matter of record.

On 12 June 1973, he was convicted by a special court-martial of being AWOL from his unit from 1-8 November 1972, 15 November 1972-22 January 1973 and from 
12 February-11 April 1973.  The disposition of the charges is not a matter of record.

The available records also show that he was AWOL from his unit from 
20 June-20 December 1973 and from 22 December 1973-8 February 1976.

On 12 February 1976, the applicant underwent a medical examination by professionally trained personnel.  He was found to be medically fit for separation.

On an unknown date, court-martial charges were preferred against him.  The specific charges are not a matter of record.  

On 17 February 1976, he consulted with legal counsel and requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200.  He was advised that the offense(s) for which he was charged could lead to a UD.  He authenticated a statement with his own signature in which he stated that he was guilty of the offense, and that he understood the ramifications of receiving a UD.  He did not submit a statement in his own behalf.

On 25 March 1976, while he was in pretrial confinement, he was admitted to the US Walson Army Hospital, Fort Dix, New Jersey, with a diagnosis of a torn medial cartilage due to falling down the stairs.   The injury was determined to be in the line of duty.  There is no further evidence available concerning the injury.

On 11 June 1976, his unit commander recommended that his request for discharge be approved.  On 14 June 1976, competent authority approved his request.

On 23 June 1976, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with a UD.  His DD Form 
214 (Report of Separation from Active Duty) shows that he had completed 
8 months, and 27 days of active military service and that he also had 1,107 days lost time due to being AWOL and in confinement.  Five hundred fourteen days were lost subsequent to his normal end of term of service date.

On 17 July 1980, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of 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 a 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.  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.

2.  The applicant's voluntary request for separation under the provisions of Army 
Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  The type of discharge directed and the reason for discharge was appropriate considering the facts of the case.

3.  There is no evidence available that indicates the applicant required any type of knee surgery nor is there any evidence that suggests that anyone tried to coerce him into having any type of surgery.  He has provided no probative evidence to the contrary.

4.  The Board determined that the applicant had many legitimate avenues through which to obtain assistance with his personal problems without committing the misconduct which led to the separation action under review.

5.  His conduct was inconsistent with the Army’s standards for acceptable personal conduct and his overall quality of service does not warrant an upgrade of his discharge. 

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

__sk____  __jea____  __reb ___  DENY APPLICATION

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

						

INDEX

CASE ID	AR1999032215	
SUFFIX		
RECON		
DATE BOARDED	20000808	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	19760623	
DISCHARGE AUTHORITY	AR 635-200, CH10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.