MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  13 April 2000 
	DOCKET NUMBER:   AR1999034801

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Sherri V. Ward		Member	
	Ms. Celia L. Adolphi		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:  Correction of his military records by upgrading his undesirable discharge to a medical discharge.

APPLICANT STATES:  In effect, that at the time of his separation, he was suffering from mental illness.  In support of his request, he submitted a copy of a hospital admission summary that described him as a homeless unemployed patient suffering from chronic schizophrenia and diabetes who was recently returned to the hospital by police after a 7 to 10 day period of elopement.  He also submitted his case worker’s personal statement. 

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

He initially enlisted and entered active duty in the Regular Army for a period of 
4 years on 5 August 1975, under the cash bonus and assignment in Europe enlistment options.

On 16 August 1975, court-martial charges were preferred against him for 
3 specifications of willful disobedience to lawful orders from a superior non-commissioned officer in the rank of sergeant first class.

On 18 August 1975, his unit commander initiated separation proceedings under the provisions of Army Regulation 635-200, Chapter 10, for repeatedly disobeying the verbal orders of his drill sergeants and displaying an attitude of extreme disrespect and belligerence toward his drill sergeants and unit commander.  His unit commander further indicated that even after his transfer to a special training company, his disrespect and belligerence continued; and that his continued military service would be very detrimental to his unit and the Army as a whole.

Also on 18 August 1975, he requested separation under the provisions of Army Regulation (AR) 635-200, Chapter 10, in lieu of trial by court-martial.  In his request, signed by him and his military lawyer, he indicated that was guilty of the offense for which he had been charged; that he made his request for discharge freely and without any coercion whatsoever; that he was afforded the opportunity to consult with his lawyer; and that his lawyer fully explained and he understood the nature of the offense, the consequences of his request for discharge, the nature of his rights under the UCMJ, and the impact of discharge under other than honorable conditions which could include deprivation of many or all Army benefits, many or all benefits administered by the Department of Veterans Affairs (VA) and many or all rights and benefits as a veteran under both state and federal law.

His report of medical history, medical examination, and mental status evaluation found him qualified for separation.  

On 2 September 1975, the separation authority, a major general, approved his request for separation and directed the issuance of an Undesirable Discharge Certificate.  His DD Form 214, separation document, indicated that he was separated on 12 September 1975 under the provisions of Army Regulation 635-200, Chapter 10 for the good of the service in lieu of trial by court-martial.  He had completed 2 months and 15 days of creditable 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.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

Army Regulation 635-40 pertains to physical evaluation for retention, retirement, or separation of RA and USAR personnel and provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The regulation further provides 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.

There was nothing in his records to indicate that he was treated for mental illness during his military service or that he had a medical condition warranting his referral for separation processing through medical channels.

On 14 May 1981, the Army Discharge Review Board (ADRB) determined that his discharge was equitable and proper and denied his request for a discharge upgrade.  After careful examination of the evidence of record and his brief record of service, the ADRB opined that his difficulty in following orders surfaced immediately after entering active duty and escalated to the point where his commander had to prefer charges and initiate separation action.  The ADRB also noted his contentions and his admission that his behavior toward his superiors was totally uncalled for and would handicap him for the rest of his life. 

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 Board concludes that the applicant’s request is not supported by the evidence of record or evidence submitted by him.

2.  The evidence of record clearly shows that his chain of command tried to assist him in overcoming his poor conduct and behavior by reassigning him to a special training company wherein efforts to restore him to productive service subsequently failed.

3.  Further, his acknowledgement of responsibility for his unacceptable behavior during the processing of his request for discharge upgrade to the ADRB, strongly suggests that he was of sound mind; that he knew the difference between right and wrong; and that he understood his oath of enlistment and his obligation as a soldier to adhere to military rules and regulations and obey the orders of those appointed over him. 

4.  His request for a Chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received for his repetitive serious misconduct.

5.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate at the time considering all the facts of the case. 

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

_FE___  ___SW__  __CA____  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034801	
SUFFIX		
RECON		
DATE BOARDED	20000413	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	750905	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	IN LIEU OF TRIAL BY COURT-MARTIAL	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.