MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 August l999                  
	DOCKET NUMBER:   AR1999022887

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell 		Chairperson	
	Mr. Samuel Calderon		Member	
	Ms. Barbara J. Ellis 		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:  In effect, reconsideration of his request for upgrade of his under other than honorable conditions (UOTCH) discharge, issued on 
1 December 1969, be upgraded to fully honorable.  His request was previously denied by the Board on 25 April 1973.  Since records reflecting the Board’s consideration at that time are no longer available, it is impossible to determine if the evidence and arguments now presented are new and different.  Therefore, the case is reviewed de novo.  

APPLICANT STATES:  In effect, that he did not feel he was medically fit to understand the discharge proceedings.  The reasons for his court-martial proceedings were not fully known at the time of his discharge or at the time of the discharge upgrade board (Note:  The Army Discharge Review Board (ADRB) reviewed his case on 10 July 1972).  He submits several documents to include a personal statement, in which he states that his attorney and his mother, in effect, prevented him from appearing before the ADRB in 1972;  that the questions asked at that board were not properly answered.  He then discusses his problems with his checking account and he recounts falling while on leave from the Republic of Vietnam (RVN), which resulted in severe head injuries.  His pay got messed up, he had to depend on his mother for financial help, his efficiency declined due to his medical problems and he had problems with his commanding officer (he was a warrant officer at the time).  He includes a chronology of events in his career from October 1967, when he was appointed as a warrant officer aviator, to being medically restricted from flying in March 1969, and a listing of his pay received and collections made between November 1967 and December 1969. 

COUNSEL CONTENDS:  That the Board should look at this case with fairness and equity and that it be appropriately upgraded.  

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

He had 4 years, 5 months and 6 days prior honorable inactive Naval Reserve service between 26 May 1962 and 31 Oct 1966.  He served as a Navy corpsman, but had no active duty.  He enlisted in the Regular Army on 1 November 1966, essentially to participate in a Warrant Officer Flight Training (WOFT) program.  While in WOFT, he received two nonjudicial punishments, under the provisions of Article l6, Uniform Code of Military Justice (UCMJ), for failure to sign in from pass on time and for being in an off limits area.  His punishments included forfeitures of pay and restriction to the unit area.  He was honorably discharged as a specialist five on 23 October 1967, for the purpose of accepting a warrant officer (WO) appointment as a helicopter pilot.  

On 24 October 1967, he was appointed a WO, Warrant Officer One (WO1), Aviation Branch.  He completed essential medical training for service as an Army Medical Corps Aviator, and was assigned to the RVN in January 1968.  While at Fort Sam Houston, Texas, where he underwent his medical training, he wrote approximately five bad checks totaling $167.00.  His records contain various pieces of correspondence which indicated that his mother may have paid part or all of the indebtedness.

He continued to serve in the RVN and was promoted to the rank of Chief Warrant Officer Two (CW-2) on 24 October 1968.  On the evening of 13/14 December 1968, while in the United States on leave (he actually may have been on leave to Hawaii, but came back to the Continental United States), he fell down some steps at night at a friend’s home in the Fort Leavenworth, Kansas, area.  He received a severe head injury with a diagnosis of basilar skull fracture, closed head injury, cerebral edema.  He underwent about a month of medical treatment at Fort Leavenworth and at the University of Kansas Medial Center, Kansas City, Kansas.  Due to no evidence of wrong doing, and being in a leave status, he was found to be in the line of duty.  

He was not returned to the RVN, but was reassigned to Fort Hood, Texas, as a rotary wing aviator in early March 1969.  On 11 March 1969, due to his medical problems, he was taken off flight status for a year (dating back to the date of injury in December 1968).  

On l8 August 1969, the applicant was charged with two specifications of violation of Article 123a, by uttering worthless checks in the amounts of $74.58 and $11.07, both instances in July 1969; and three specifications of violation of Article 133, UCMJ, for conduct unbecoming an officer by failing to pay just debts in the amounts of $200 (to another officer in the Army between February and August 1969), $119.80 to a flying club at Fort Hood in August 1969 and $313.45 to the Officers Open Mess at Fort Hood between July and August 1969.  Two other violation of Article 123a, in the form of additional charges, were not referred to trial.  

The chain of command recommended trial by general court-martial and the charges were so referred to trial.  

On 12 September 1969, the applicant, after consulting with legal counsel, requested discharge under the provisions of Chapter (Section) 5, Army Regulation 635-120.  In this request he stated that he understood that he could receive a UOTHC discharge.  

On 19 September 1969, the applicant underwent  a Mental Hygiene Consultation at the installation mental hygiene service.  The report of examination stated that there was no significant emotional illness found which would warrant further psychiatric evaluation or would be a barrier to trial.  In the opinion of the examining psychiatrist, the applicant was at the time, and at the time of the alleged offenses, free from mental disease, defect, and derangement as to be able to distinguish between right and wrong and to adhere to the right.  He possessed sufficient mental capacity to understand the nature of the proceedings against him and to conduct or cooperate in his own defense intelligently.  

On 22 September 1969, in connection with his request for discharge, the same examining psychiatrist diagnosed the applicant with a character disorder, immature personality.  The examiner found that he had manifested a maladaptive behavior pattern, which was long-standing and was not likely to change.  He was recommended for separation.

On 27 September 1969, the commanding general of the 2d Armored Division reported to the Department of the Army that the resignation submitted by the applicant be accepted, UOTHC.  The general officer noted that since charges were preferred the following incidents had occurred:

a.  He was arrested on a warrant issued by a civil court in Texas for swindling by a worthless check.  He posted a $1000 bond.  
b.  A warrant was issued by another county in Texas for swindling by a worthless check.
c.  He purchased an automobile and an airplane on credit.
d.  He was placed in arrest in quarters on 19 September 1969 for reporting back 2 days late from a pass and not reporting to his commanding officer as instructed.  He remained in arrest in quarters as of 27 September 1969,

On 22 October 1969, the Director of the Army Council of Review Boards (a major general), Department of the Army, reported to the Under Secretary of the Army that a five-member ad hoc panel of the Army Council of Review Boards met and reviewed the case.  That board recommended that the request be denied and that the case be returned to the command for appropriate command action (essentially for trial by court-martial).  This was contrary to the recommendation of the commanders in the field.

On l4 November 1969, the Under Secretary of the Army denied the recommendation of the Army Council of Review Boards and accepted the request for resignation from the applicant.  He was to be discharged with an UOTHC discharge.

On 1 December 1969, the applicant was found to be medically qualified for discharge.  Therefore, on the same date, he was discharged, with a UTOHC discharge, under the provisions of Section V, Army Regulation 635-120, in lieu of elimination because of conduct triable by courts martial.  He was credited with 
2 years, 1 month and 8 days service as a warrant officer, and had 5 years,
4 months and 28 days prior service.  His awards and decorations during this period included the Vietnam Service Medal and the Air Medal with two silver and one bronze oak leaf clusters.  He had previously earned the National Defense Service Medal and two weapons qualification awards.  

On 20 July 1972, the applicant had a personal appearance hearing before the ADRB in Washington.  He was represented by a qualified veteran service’s counselor and his mother appeared as a witness on his behalf.  The applicant did not appear in person.  The mother and counsel basically asserted that the applicant had a character disorder, a mental disorder. Instances of writing bad checks and delusions of grandeur prior to his going to the RVN were cited.  Other medical problems as the result of a claimed helicopter accident or crash in the RVN (not substantiated by any medical records) and the fall in 1968 were also cited during the testimony before the ADRB.  His personality had changed and he was doing things he should not be doing (such as trying to fly and even driving).  The mother essentially did not know what the nature of the court-martial charges he was facing in the fall of 1969.  The Board voted to deny relief.  

The applicant then appealed his case to this Board in November 1972.  In connection with his appeal, a medical advisory opinion was obtained from the Office of the Surgeon General (OTSG) and is dated 19 April 1973 (COPY ATTACHED).  Essentially, this opinion stated that the applicant was medically fit for retention or separation at the time.

On 25 April 1973, this Board found insufficient evidence of a material error or injustice existing in his case and his appeal was denied.  However, as indicated earlier, the results of the Board’s deliberations are no longer available.  

The applicant had 1 year of honorable enlisted service in the Kansas Army National Guard and the US Army Reserve between October 1976 and October 1977.  

Army Regulation 635-120 sets forth the basic authority for the separation of officer personnel.  Section 5 of that regulation, then in effect, provided, in pertinent part, that an officer who had committed an offense or offenses for which a trial by court-martial was warranted, could essentially request discharge in lieu of trial by court-martial.  The request could be submitted after charges were preferred and the individual had consulted with legal counsel.  The request would be forwarded to the Department of the Army, where an ad hoc review board, in the Army of the Council of Review Boards would review the case.  The board’s recommendations, along with those of the commanders in the field would be forwarded to the Secretary of the Army, or his designated representative for final action.  Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate.

Army Regulation 40-501, at paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

In connection with the current application, the April 1973 advisory opinion from the OTSG was referred through his counsel to the applicant for comment or rebuttal.  No response to this referral was received.  

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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-135, Section V, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.

3.  The applicant has not provided any probative evidence that his medical problems were so severe as to have provided a basis for processing through the Army Physical Disability Processing System, or to perform his duties.  This was determined at the time he was being processed for trial by court-martial and in connection with his request for an administrative discharge in the fall of 1969.  This is supported by the OTSG’s advisory opinion.

4.  While the Board is empathetic to the applicant’s removal from flight status, his inability to conduct his personal affairs, to include handling of money, does not provide a basis to grant relief.  The applicant was sufficiently mature, had more than 7 years service and should have known the consequences of his actions to issue worthless checks and to not pay back his indebtedness.  His actions brought great discredit upon the Officer Corps and the Army.  

5.  The applicant’s serious off-duty conduct at the same time he was facing action by military authorities for essentially the same type of offenses further support the separation action in this case.

6.  The Board therefore concludes that the type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

7.  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

__SLP___  _SC____  __BE____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR199902287	
SUFFIX		
RECON	19730425	
DATE BOARDED	19990826	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19691201	
DISCHARGE AUTHORITY	AR635-120, SEC V	
DISCHARGE REASON	A80.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	A01.01	
3.	A01.13	
4.	A93. 21	
5.	A94.07	
6.	A92.00