APPLICANT REQUESTS:  That his records be corrected to show that his discharge under other than honorable conditions (UOTHC) was due to a physical disability.

APPLICANT STATES:  In a lengthy explanation, he explains how he stepped in a ditch, in 1992, while serving in the Republic of Korea (ROK) and fractured his ankle; how he was involved in an accident, in 1994, and suffered a cervical spine fracture with neck pain and depression; how his chain of command attempted to keep him from receiving medical treatment; how he overdosed on prescribed medications; and, how he received misleading information from his military legal counsel.

COUNSEL CONTENDS:  That the applicant may have been wrongfully discharged from the Army due to medical and mental problems and asks that his case be made a priority.

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

During the period 29 April-21 October 1986, as a member of the California Army National Guard, the applicant served on initial active duty for training, a total of 5 months and  23 days. 

On 6 January 1991, he enlisted in the Regular Army, in pay grade E-2.  He completed his required training and was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).  He was advanced to pay grade E-4 effective 8 March 1993.

On 25 August 1992, he suffered a fracture (fx) of his left ankle while enroute to the ROK.  In September 1992, after his arrival in the ROK, he sought medical assistance.

On 28 September 1992, he arrived in the ROK.

On 19 December 1992, after medical personnel determined he was not recovering from his ankle fx by non-invasive forms of treatment, he was returned to Fort Irwin, California.
On 5 February 1993, the applicant reported to medical authorities that he had been involved in a motor vehicle accident and a civilian physician advised him of a chipped bone in his neck.  Their impression at the time was that he had a small undisplaced chip fx.

On 30 April 1993, surgical intervention was accomplished and it was diagnosed as healed on 10 December 1993.

On 20 May 1993, he was hospitalized for an overdose of prescription medication, requiring mechanical ventilation and on 31 May 1994, he was diagnosed as being alcohol dependent and having an antisocial personality disorder and was discharged from the Balboa Naval Hospital, California.

On 1 June 1994, records show that the applicant was reduced to pay grade E-3, but are silent as to the reasons.

On 1 June 1994, his commander preferred court-martial charges against him for being drunk and disorderly on      28 February 1994.  The record is not complete on the details of this incident, but the gist of the incident was that he was supposedly sick in quarters and drinking when an incident occurred with a post employee who was repairing a plumbing problem.  According to the applicant, the plumber called the military police to report the water damage to the furniture.  The military police took the applicant into custody.  A preconfinement physical was given and he admitted to alcohol use.

On 16 August 1994, after consulting with legal counsel, he voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged that he was guilty of the charges against him, that he could receive a UOTHC discharge, and that he understood the effects of receiving such a discharge.


On 17 October 1994, he was discharged, UOTHC, under the above cited regulation.  His Report of Separation indicates that he had 3 years, 9 months and 12 days of creditable service and 4 years, 3 months and 5 days of total service.

On 10 December 1996, the Office of The Surgeon General (OTSG) provided an opinion (COPY ATTACHED) which indicated that at the time of his separation, he was alcohol dependent, which was not in the line of duty; that he had a substance induced mood disorder, which was also not in the line of duty; an antisocial personality disorder; a fracture of the left ankle; and occupational problems related to social environment, housing problems, and problems related to interaction with the legal system/crime.  He met retention medical standards in effect at that time.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

Title 10, United States Code sections 1201 and 1203, provides for the physical disability retirement and separation, respectively, of a member who has at least     20 years of service or a disability at least 30 percent disabling


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, 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 the aforementioned requirement.

2. The evidence of record clearly shows that the applicant was medically qualified for retention at the time of his separation, even though there is no further mention of the displaced bone chip.

3.  There is no evidence that the applicant’s chain of command precluded his medical treatment nor is there evidence that his legal counsel misled him about requesting discharge under chapter 10.

4.  The applicant chose to request an administrative discharge rather than risk the consequences of a court-martial.  Although he may now feel that he made the wrong choice, he should not be allowed to change his mind at this late date.

5.  The applicant’s voluntary request for separation under 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.

6.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

7.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
8.  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




						Karl F. Schneider
						Acting Director