MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           19 MARCH 2002
	DOCKET NUMBER:   AR2001063067

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Elzey J. Arledge, Jr.		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:  The applicant requests that the records of her  husband, a former service member (FSM), now deceased, be corrected to upgrade his discharge to honorable or to show a medical (physical disability)   discharge. 

APPLICANT STATES:  That under current policy and procedures he would have received a discharge of no less than general.  He had honest and faithful service prior to his medical condition [the onset of his medical ailments].    

COUNSEL CONTENDS:  That the FSM had 555 days of AWOL because of medical and family problems.  He states that the applicant feels that no person should be brought to trial unless he possesses sufficient mental capacity to understand the nature of the proceedings against him and to conduct or cooperate intelligently in his defense.  The FSM should have been placed under observation and examined, and an investigation conducted, if necessary.  She believes that there was doubt concerning the applicant’s mental capacity to understand the actions during a court-martial proceeding.  Counsel states that the FSM had frequent medical ailments as indicated on his 29 September 1967 report of medical history.  The FSM should have been treated for his medical conditions.     

EVIDENCE OF RECORD:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's  consideration of his case on 10 July 1991 in which the FSM requested that his undesirable discharge be upgraded to honorable (AC91-06212).

The 7 February 1968 report of medical examination, conducted a little more than one month prior to the discharge of the FSM shows that the applicant was medically qualified for discharge with a physical profile serial of 1 1 1 1 1 1 .  In the report of military history which he furnished for the examination, the FSM listed various ailments and conditions which he had, or had had, to include swollen or painful joints, mumps, whooping cough, frequent or severe headache, dizziness or fainting spells, shortness of breath, cramps in legs, painful or trick shoulder or elbow, trick or locked knee.  He also indicated that he had or had had car, train, sea, or air sickness, and nervous trouble.  He stated that his health was good.  In a 29 September 1967 report of military history, the FSM listed ailments similar to those listed on the later report.

In addition to the information concerning the psychiatric evaluation in the 1991 case, the psychiatrist also stated that the FSM vowed to continue going AWOL since he had no motivation to adjust to the Army. 

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.
Army Regulation 40-501 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.

Army Regulation 635-40, then in effect, establishes policies and prescribes procedures for the physical disability evaluation of soldiers for retention, retirement, or separation, and states, in pertinent part, that when a member is undergoing evaluation of a referral arising during separation processing for reasons other than physical disability, continued performance of duty creates a presumption of fit for duty.  That regulation also states that no enlisted member may be referred for physical disability processing when the record indicates the basis for separation is unfitness.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12c states that soldiers are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the MCM.  An absentee returned to military control from a status of absent without leave may be separated for commission of a serious offense.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged for misconduct.

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.  Although the FSM did list several ailments and conditions that he had, or that he had had, he stated that his health was good.  Qualified medical personnel determined that he was physically and mentally fit for discharge as reflected in his 1968 report of medical examination and psychiatric report.  In addition, his continued performance of duty immediately prior to his discharge, raised a presumption of fitness which has not been overcome by evidence of any unfitting, acute, grave illness or injury concomitant with the separation of the FSM.  The FSM did not have any medically unfitting disability which required physical disability processing.  Furthermore, the FSM could not have been referred for disability processing because of the nature of his discharge proceedings. Therefore, there is no basis for physical disability separation (medical discharge).  No medical evidence has been presented by the applicant to demonstrate an injustice in the medical treatment the FSM received in service.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.  Notwithstanding the applicant’s contentions, the policy currently in effect concerning an administrative separation for misconduct, five periods of AWOL for a total of 555 days, would undoubtedly result in a discharge under other than honorable conditions – no different from that in 1968. 

3.  Neither the applicant nor counsel has submitted probative evidence or a convincing argument in support of her request.   

4.  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 that requirement.

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

__SLP __  __SK ___  __EJA___  DENY APPLICATION

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

INDEX

CASE ID	AR2001063067	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020319	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	108.00	
3.		
4.		
5.		
6.