MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  9 June 1999
	DOCKET NUMBER:   AR1999019800

	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	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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 under other than honorable conditions (UOHC) discharge be upgraded to a general discharge (GD). 

APPLICANT STATES:  In effect, he is requesting that his discharge be upgraded for medical reasons.  He has a life threatening illness.

COUNSEL CONTENDS:  The applicant is requesting an upgrade of his discharge based on humanitarian reason or service clemency so that he can request medical assistance from the Department of Veterans Affairs (DVA).  

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

On 24 October 1978, he enlisted in the Regular Army for a period of 3 years and training in military occupational specialty (MOS) 72E (Telecommunications Center Operator).  He was assigned to Fort Gordon, Georgia for One Station Unit Training (OSUT).  He completed basic combat training, however, he did not complete advanced individual training (AIT) for the 72E course.  On 2 February 1979, he was reassigned to Fort Leonard Wood, Missouri for training in MOS 63B (Light Wheel and Power Generation Mechanic). 

Not all the discharge proceedings are a matter of record.  However, an OSA Form 
172 (Army Council of Review Boards Case Report and Directive) proceedings in 1986, reveals that on 20 August 1980, while assigned to Germany, the applicant was charged with conspiring to commit sodomy by force and without consent and for committing sodomy (23 June 1980). 

The OSA Form 172 further reveals that on 22 September 1980, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against the applicant for violation of a lawful regulation and for possession of a switchblade (27 June and 4 July 1980).  His punishment is not clearly stated, however, on 22 September 1980, he was reduced from pay grade 
E-4 to grade E-3.

On 31 October 1980, 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.  The record does not contain a statement submitted by the applicant on his own behalf.

On 7 November 1980, the applicant’s unit commander, the intermediate commander and the senior intermediate commander recommended separation with a UOHC discharge. 

On 8 November 1980, competent authority approved the request and directed that the applicant be separated with a UOHC.  On 4 December 1980, a mental status evaluation cleared the applicant for separation and he waived a separation physical.

On 4 December 1980, he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with a UOHC discharge.  He had completed 2 years, 1 month, and 11 days of active military service and he had no recorded lost time.

The record indicates the Army Discharge Review Board denied the applicant an upgrade of his discharge on 7 August 1986.

Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge may have submitted a request for discharge for the good of the service in lieu of trial by court-martial.  The request may have been submitted at any time after charges were preferred and must have ncluded the individual’s admission of guilt.  Although, an honorable or general discharge was authorized, a UOHC was then considered appropriate.

Army Regulation 635-40, paragraph 2-2b, as amended, 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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 the aforementioned requirement.

2.  While the entire discharge packet is not a matter of record, the offenses for which the applicant was charged, conspiring to commit sodomy and for committing sodomy, if convicted by court-martial, could have resulted in a punitive discharge.  However, prior to trial, he could have requested separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offenses under the UCMJ.  The Board has presumed regularity in the discharge process.  The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  Therefore, the type of discharge directed and the reason for discharge was appropriate considering the facts of the case.  There has been no basis established to grant clemency in this case.

4.  The applicant's life threatening illness is unfortunate, however, he has provided no evidence that his medical condition existed at the time of his discharge.  He should continue to work with the DVA. 

5.  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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999019800	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	(UOHC)	
DATE OF DISCHARGE	19801204	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	He has a terminal illness and the purpose of the request is for medical reasons.	
2.		
3.		
4.		
5.		
6.