MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           30 May 2002                  
	DOCKET NUMBER:   AR2001063332

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Paula Mokulis		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 honorable discharge be changed to medical discharge with entitlement to retired pay at age 60.

APPLICANT STATES:  Through administrative error, he was discharged prior to his being considered by a fit for duty review board.

In support of his application he submits a letter from the Adjutant General (AG) of the Alabama Army National Guard (ARNG).  In that letter the AG states that the applicant was discharged in error due to misconduct, that he should have been boarded by a medical fit for duty review board to determine his physical fitness for retention.  The AG continues that it is his opinion that there was more than sufficient evidence to determine that the applicant was medically unfit for retention.  Therefore, it would appear that the applicant should have been retained in an active status as a Guardsman, been boarded by a medical fit for duty review board, and then medically discharged with entitlement to retired pay at age 60 in accordance with Public Law 103-337.

In support of his application, he submits medical records which show that he was diagnosed as having the following medical conditions prior to his discharge:  Bipolar/affective disorder, degenerative joint disease involving cervical and lumbrosacral spine, hypertension, and chronic periodontitis (a dental disorder that results from progression of gingivitis, involving inflammation and infection of the ligaments and bones that support the teeth).  In one document a physician diagnosed him as suffering from brain damage which was thought to be a result of an anterior cerebral artery infarction, which was most likely secondary to hypertensive cerebral vascular disease.

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

While serving as a sergeant in the ARNG, the applicant submitted a conditional waiver dated 25 May 1995 wherein he consented to a discharge for misconduct contingent upon his receiving a fully honorable discharge.  However, the applicant added a condition to the conditional waiver.  That condition was that the discharge would be suspended until he was considered by a medical review board.

In a review of the applicant’s case and his conditional waiver by the Judge Advocate of the State, it was stated that the applicant had tested positive for marijuana.  The Judge Advocate determined that the State Adjutant General could either retain the applicant or discharge him with an honorable discharge.

On 6 May 1996, the applicant submitted a second conditional waiver, wherein he again consented to a discharge for misconduct contingent upon him receiving a fully honorable discharge.  However, in this waiver he did not add the condition of having a medical review board consider his case prior to the discharge being published.  In that waiver the applicant stated that having “been advised by my consulting counsel of the basis for the contemplated action to separate me for misconduct – abuse of illegal drugs . . . and its effects; of the rights available to me; and the effect of any action taken by me in waiving my rights.  I understand that I am entitled to have my case considered by an administrative separation board . . . I hereby voluntarily waive consideration of my case by an administrative separation board contingent upon my receiving a characterization of service or description of separation no less favorable that honorable discharge . . . I am making this request of my own free will and have not been subjected to any coercion whatsoever by any person.”  The applicant’s legal counsel stated on this waiver that the applicant “ . . . denies ever using marijuana.  He is waiving the board based on his medical conditions and on the contingency that he receives an honorable discharge.”

That waiver was accepted and on 6 June 1996, the applicant was honorably discharged due to misconduct.  He had 16 years, 10 months and 16 days of non-regular service in the ARNG.

Army Regulation 135-178, paragraph 7-14, “Action by the separation authority on unit commander’s recommendation,” states that the convening authority may direct that a case be processed through medical channels if the soldier has an incapacitating physical or mental illness which was the direct or substantial contributing cause of the conduct for which separation action due to misconduct has been initiated.  Chapter 7 of this regulation states that soldiers separated due to misconduct are normally discharged with a characterization of service of under other than honorable conditions (UOTHC).

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant, after consulting with legal counsel, opted to waive his right to a board of officers contingent upon his receiving an honorable discharge.  It is noted that his second conditional waiver, the one acted upon by the Adjutant General, did not add that he be considered by a medical review board prior to the discharge being executed.  In both of the waivers submitted by the applicant, he certified that he was voluntarily submitting the waivers; that he had not been coerced into submitting them.  The Board notes that if he had not submitted a conditional waiver, the possibility existed that he would have been discharged with a characterization of service of UOTHC.  

2.  The only basis for processing a soldier through medical channels is when the soldier has an incapacitating physical or mental illness which was the direct or substantial contributing cause of the conduct for which separation action resulted due to misconduct.  The Board knows of no illness which would cause the use of marijuana, the offense for which the applicant was discharged.

3.  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

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

INDEX

CASE ID	AR2001063332	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020530	
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.	105.05	
2.		
3.		
4.		
5.		
6.