MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           16 May 2002                  
	DOCKET NUMBER:   AR2001065198

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Roger W. Able		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 discharge be upgraded to general.

APPLICANT STATES:  He was accused of being AWOL and of signing his own clearance.  They would not give him a lie detector test or have a handwriting expert analyze the writing to prove the allegation against him.

He offers four letters to support his appeal.  One states that he is a good neighbor who respects himself and others.  He can always be counted on to help and would not take advantage of anyone.  Another writes that she has known the applicant for 25 years and that he carries himself well.  He is concerned about others and willing to help.  He values family life and the community.  He is dependable and a man of his word.  A third writes that she is aware of the applicant's in-service medical history and that he has had difficulty in keeping a job because of these medical problems.  Part of his problem is a bad back that was undetected while he was in the service and has been diagnosed as something he was born with.  He has not been able to work more than three days at a time.  He can not afford to see a doctor or obtain medications.  He needs government intervention.  The fourth writes that she has known the applicant all his life and he has always been obedient and respectful.  He is a dependable family man who is always helpful.

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

He served in the Army National Guard from July 1974 to January 1976 when he was involuntarily ordered to active because on non-participation.  He enlisted in the Regular Army on 19 January 1976 and served on continuous active duty until his discharge.  He received the second award of the Good Conduct Medal on 18 June 1982 and was promoted to sergeant (E-5) with an effective date of rank of 2 May 1983.

On 30 January 1985 a physical profile was issued for his feet, however the applicant requested and was granted certification by his commander that he could perform all of the duties of his military occupational specialty (MOS), communications center specialist (72E).  On 1 August 1985, he had surgery on both feet.  A 23 January 1986, medical evaluation board (MEB) found the applicant medically unqualified and referred his case to a physical evaluation board (PEB).  A 4 March 1986, PEB found the applicant physically unfit due to post surgical syndrome of both feet rated at 30 percent disabling by analogy to acquired pes cavus (abnormally high arch).  Disability retirement was recommended.  The applicant concurred and waived a formal PEB.

On 22 July 1986 charges were preferred against the applicant for being absent  without leave (AWOL) from 23 April 1986 to 10 May 1986, using marijuana on a military installation, theft of $290.00 worth of the personal property of a specialist four and making a false official statement to the effect that his installation clearance form had been signed by the company commander.  The charges were referred to a special court-martial empowered to adjudge a bad conduct discharge.

The applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged that he was guilty of the offenses charged or of a lesser-included offense for which he could receive a punitive discharge.  He also indicated that he understood the nature and consequences of the other than honorable discharge that he might receive, including that he might lose some or all of the benefits administered by the Veterans Administration and other Federal and/or state agencies.  He indicated that statements on his behalf were being submitted.

An assigned defense attorney, a member of the Judge Advocate General's Corps, submitted a letter to the separation authority pointing out that the applicant would have to forfeit the already approved disability retirement pay of $361.89 per month for life.  Therefore, even if he did not go to trial, he would not go unpunished.  He specifically asked that the request be approved.

The separation authority approved the applicant's request and directed that a discharge under other than honorable conditions be issued.  On 14 November 1986, the applicant was separated under the provisions of Army Regulation 
635-200, chapter 10.  

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

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 or continued in 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's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, 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.  In light of the applicant's overall record of service, the offenses involved and the total circumstances of the case, the characterization of service is appropriate.

2.  The letters from the applicant's supporters are accepted as an implied argument that his post-service behavior and conduct warrant the requested relief. However, these factors are not so exceptionally meritorious as to outweigh the offenses for which he requested discharge in lieu of facing trial by court-martial.

3. 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 this requirement

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

__FNE___  __RWA _  ___PM_____  DENY APPLICATION

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

INDEX

CASE ID	AR2001065198	
SUFFIX		
RECON		
DATE BOARDED	20020516	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR 600-200, ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	A92.21	
2.		
3.		
4.		
5.		
6.