MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:	

	BOARD DATE:             22 August 2000                    
	DOCKET NUMBER:	AR1999034099

	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. W.W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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:  Reconsideration of his previous application to correct his records by upgrading his general discharge.

APPLICANT STATES:  In effect, he was improperly discharged.  He contends that his injured hand prevented him from performing duty and that his chain of command resented the fact that he got time off for medical attention.  The command violated his physical profile, manufactured charges against him, assaulted him and covered all these things up.  He was written-up for numerous offenses he never committed, including going to a concert he did not attend.  He has the original whole ticket to prove he did not attend.  He was never informed he could challenge the elimination proceedings, his lawyer took care of everything.  He was on leave from 17 December 1985 to 18 January 1986 and when he came back “the fix was in” to have him discharged.  He was assaulted because he officially protested the loss of his pass and civilian clothes privileges. He contends, in effect, that he was a model soldier who had no problem prior to injuring his hand.  This incident led him to an interest in the law.  He is applying to law school and needs to clear his name.  His Army Physical Readiness Test (APFT) score in August 1985 proves he was an exceptional soldier.  He did 69 pushups even though his left hand had been permanently injured on 3 July 1985.  He believes that this APFT test and the fact that he was assaulted but did not defend himself attests to his exceptional self-discipline. The hand is permanently injured.  He receives disability compensation from the Department of Veterans Affairs (VA).  He submits numerous documents to substantiate his case.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 7 October 1999.

The applicant’s submissions are new evidence that required board consideration.

A record of APFT conducted 1 August 1985 shows the applicant did 69 pushups  
and scored a total of 299 points.

Medical appointment slips show that, between 6 August 1985 and 6 November 1985 he had 25 appointments with orthopedics and/or occupational therapy. 

On 20 September 1985 a suspension of favorable actions (Flag) that had been imposed on 10 July 1985 was closed in the applicant’s favor.

He submits copies of an 11 October 1985 concert ticket and of his Educational Development Record.

An investigating agent made a summary statement on 22 November 1985 about a CID investigation into charges that the first sergeant had assaulted the applicant on 13 November 1985.  The investigating agent relates that the first sergeant indicated that the applicant had become belligerent while being counseled about plans for “chaptering him out of the Army.”  On 22 November 1985 a staff sergeant reported that he had witnessed the incident in the first sergeant’s office.  The first sergeant had received a telephone call from the staff judge advocate’s office about the first sergeant taking the applicant’s clothes. The applicant displayed a “cocky grin” while the first sergeant was counseling the applicant about what clothing he could and could not take.  The first sergeant struck the applicant in the face with his fist and with his open hand.  The witness related that perhaps the applicant had not seen the first sergeant put down a paper weight and believed that he had been struck with it.  The first sergeant was apprehended and a decision made to title him with cruelty and maltreatment of a subordinate and assault. 

On 5 December 1985 the applicant was placed on a temporary physical profile because of hand surgery.  His profile excluded lifting more than 5 pounds with his left hand, work requiring the use of both hands, physical training involving the upper extremities, driving military vehicles and handling firearms.  

VA documents show the applicant receives 40 percent disability compensation from the Department of Veterans Affairs (VA) for the loss of his use of his left hand.

A leave slip shows the applicant departed on 30 days ordinary leave on 
17 December 1985.

The applicant submitted an essay he wrote in support of his application to law school, letters of recommendation for law school admission in which he states that “I received an honorable discharge.”   He also includes several certificates of accomplishments, articles about his participation in various projects, his resume’, his college transcript showing completion of 41 credits and VA documents showing a 40 percent rating for loss of use of his left hand.
 
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.  Superior ranking individuals should not subject soldiers to maltreatment and assault.  However, it appears to have happened to the applicant.  Nevertheless, this does not support the conclusion that the elimination action was unfounded.  Neither is it appropriate to upgrade the applicant’s discharge simply because of this incident.   

2. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.

3.  There is no convincing evidence to support the applicant’s contention that his performance was flawless and the elimination both improper and unfair.  If he had been the perfect soldier why was the 10 July 1985 flagging action imposed.  Although the documents submitted dovetail nicely with the applicant’s version of events, they do not prove his case.  The “fix” [to eliminate him from the service] was not put into place while he was on leave in Mid-December 1985.  Clearly elimination was being considered well before the applicant went on leave.  He had the benefit of counsel and the evidence of record does not support his contention that he was never notified of the elimination proceedings.  

4.  This 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.  

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

___EW__  ___MVT    ___KWL_____  DENY APPLICATION

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

INDEX

CASE ID	AR1999034099	
SUFFIX		
RECON		
DATE BOARDED	20000822 	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19860225 	
DISCHARGE AUTHORITY	  AR 635-200, chapter 13	
DISCHARGE REASON	A49.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES        1.	108.04	
2.		
3.		
4.		
5.		
6.