MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            18 August 1999
	DOCKET NUMBER:   AC93-1139D
				   AR1999014649

	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. Loren G. Harrell		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Edward Williamson		Member	
	Ms. Sherri V. Ward		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:  Under the Board’s Reconsideration project and on a subsequent DD Form 149 (application for correction) reconsideration his earlier application to correct his records by upgrading his discharge to honorable due to medical disability.

APPLICANT STATES:   In effect, that he should have been processed for disability separation.  He contends that his medical records show that he was disabled.  He also states that his AWOLs were due to circumstances beyond his control.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memoranda prepared to reflect the Board's previous consideration of the case on 4 May 1994 (COPY ATTACHED).

The applicant’s contentions constitute new argument which requires Board consideration.

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 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. 

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 was under charges until he was discharged and was not eligible for disability processing regardless of his medical condition.   

2.  The fact that the applicant was incarcerated by civilian authority for civilian crimes does not excuse his AWOL.

3.  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.

4.  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

__RVO__  ___EW__  __SVW__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC93-011399D
AR1999014649	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
2.		
3.		
4.		
5.		
6.