MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 January 2002                   
	DOCKET NUMBER:   AR2001062899

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Ted S. Kanamine		Member	
	Mr. John T. Meixell		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, that his administrative separation be changed to a physical disability separation.

APPLICANT STATES:  In effect, that he injured his knees and Achilles tendon during maneuvers and the Department of Veterans Affairs (VA) will not treat him. He provides no supporting evidence.

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

He enlisted in the U. S. Army Reserve on 20 May 1992.  He entered initial active duty for training on 28 May 1992.  

A memorandum dated 6 August 1992 indicates that a line of duty determination was initiated and a Statement of Medical Examination and Duty Status, DA Form 2173, was forwarded to the applicant’s unit.  The line of duty determination is not available.  

On 12 August 1992, separation action on the applicant was initiated under the provisions of Army Regulation 635-200, chapter 11 for entry-level status performance and conduct.  The commander cited the applicant’s lack of motivation, lack of discipline, inability to follow orders, and insubordinate attitude towards his cadre as the reasons for the proposed action.  The commander indicated the applicant had accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on 14 August 1992 but the Article 15 is not available and the offense for which it was given is not known.  

On 20 August 1992, the applicant acknowledged notification of the proposed separation action.  He waived his rights and elected not to submit a statement on his own behalf.  

On 20 August 1992, the applicant elected to waive his right to undergo a separation medical examination.

On 21 August 1992, the appropriate commander waived rehabilitative transfer and approved the recommendation with an uncharacterized, entry-level discharge.  

On 27 August 1992, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11, entry-level status.  His character of service was uncharacterized.  He had completed 3 months of creditable active service.

Army Regulation 635-200, chapter 11 sets the policy and prescribes procedures for separating members who were voluntarily enlisted in the Regular Army, National Guard or Army Reserve, are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of creditable continuous service, and have demonstrated that they are not qualified for retention.  The following conditions are illustrations of conduct that does not qualify for retention:  cannot or will not adapt socially or emotionally to military life; cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline; or have demonstrated character and behavior characteristics not compatible with satisfactory continued service.  Unless the reason for separation requires a specific characterization, a soldier will be awarded an uncharacterized description of service if in an entry-level status.  (For Regular Army soldiers, entry-level status is the first 180 days of continuous active duty.)

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Under the laws governing the Army Physical Disability Evaluation system, soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  The disability must not have resulted from the soldier’s intentional misconduct or willful neglect.  The disability must not have been incurred during a period of unauthorized absence.

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.  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.

2.  The available line of duty determination request indicates that the applicant was injured in some manner.  However, there is no evidence to show what the injury was, how badly he was injured, or whether or not the injury was the result of the applicant’s own misconduct.  The applicant elected to waive his right to undergo a separation medical examination at the time and so there is no separation physical documenting his injury.  There is no evidence of record and the applicant provides none to show that he was physically unfit for military duty at the time of his separation.  

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

__fne___  __tsk___  __jtm___  DENY APPLICATION

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

INDEX

CASE ID	AR2001062899	
SUFFIX		
RECON		
DATE BOARDED	20020110	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.