MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 June 2000
	DOCKET NUMBER:   AR1999033789

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning 		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Curtis L. Greenway		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 discharge under other than honorable conditions be upgraded to honorable and that he be retired.

APPLICANT STATES:  That his counsel never informed him that his discharge would result in a grade reduction, nor did he explain that he would not get the medical treatment that had been requested due to his illnesses.  In support of his request, the applicant submits a copy of a 17 April 1997 note that he wrote to his trial defense, copies of his NCO evaluation reports, a request for a 5-day pass, a request for reassignment, and extracts from the internet on information concerning drugs.

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

He enlisted in the United States Army Reserve on 15 August 1986 and entered the Active Guard/Reserve (AGR) Program on 28 January 1990.  He was promoted to staff sergeant on 1 December 1992.

The applicant’s initial AGR assignment was as a personnel records specialist at the U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, Missouri.  Eventually, he was transferred to Michigan where he served for approximately 1 year as the personnel records supervisor in a unit in Fraser, Michigan, before being reassigned in April 1995 as the personnel and administration center (PAC) noncommissioned officer-in-charge for a combat support hospital located in Southfield, Michigan.

Partial medical records indicate that the applicant was treated for a chronic pulmonary disorder secondary to a diagnosis of sarcoidosis.  He was generally treated with steroids such as prednisone.

The facts and circumstances pertaining to the applicant’s discharge are not on file.  From a hearing before the Army Discharge Review Board on 18 October 1999, it is noted that he was charged with violations of the Uniform Code of Military Justice, in particular two specifications of Article 89 (disrespect) and two specifications of Article 134 (general).  His Certificate of Release or Discharge from Active Duty, DD Form 214, indicates that he was discharged at Fort Knox, Kentucky, on 2 May 1997 for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and was issued a Discharge Certificate Under Other Than Honorable Conditions.  He was reduced to pay grade E-1.  He had 7 years, 9 months and 5 days of active creditable service and 2 years, 11 months and 10 days of inactive 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.

The regulation also provides in chapter 1 that when a soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, paragraph 1-2, provides that a soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for physical 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.

On 7 May 1999, the Department of Veterans Affairs (VA) conducted a hearing which established that the applicant’s military service was not under dishonorable conditions and that he was entitled to VA medical benefits.  The VA awarded the applicant a combined disability rating of 50 percent for depression (50%) and sarcoidosis (0%).

On 22 October 1999, the Army Discharge Review Board denied the applicant’s request for upgrade of his discharge.

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’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, is presumed to be administratively correct and in conformance with applicable regulations.  This Board also 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.  The applicant’s request for a chapter 10 discharge tends to show he wished to avoid the court-martial and punitive discharge that he might have received.  

3.  Since he was discharged under other than honorable conditions, the applicant’s reduction in pay grade at separation was appropriate.

4.  Considering the applicant was charged with an offense for which he could be dismissed or given a punitive discharge, he was not eligible for physical disability processing.  Furthermore, the applicant’s military service was not interrupted by physical disability.  Notwithstanding the presence, or possible presence, of various medical conditions, there is no evidence of record, nor has the applicant provided sufficient evidence, which would indicate that he suffered from any medical condition of such severity that he was rendered unable to reasonably perform the duties of his office, rank, grade or rating.

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

__mdm__  __wtm__  __clg____  DENY APPLICATION

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

INDEX

CASE ID	AR1999033789	
SUFFIX		
RECON		
DATE BOARDED	20000622	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19970502	
DISCHARGE AUTHORITY	AR635-200 CH10	
DISCHARGE REASON	A70.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	145.00	
3.		
4.		
5.		
6.