APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement or separation.  

APPLICANT STATES:  He was sick but was discharged because of minor infractions.  He should have been medically discharged.  The Army even tried to put him in the field when he was sick.  His misconduct was a result of his illness.  He told his commanding officer of his problem but was only laughed at.  He begged that official to take him to the emergency room, but his commanding officer didn’t, and he (the applicant) had to suffer.  All his problems came from a medical condition. 

COUNSEL CONTENDS:  Counsel requests that the Board review the applicant’s record and correlate his treatment periods
for a void dysfunction with his dates of negative reports for a determination of probable interaction (COPY ATTACHED).  
EVIDENCE OF RECORD:  The applicant's military records show:

The applicant had prior service in the Army National Guard. He enlisted in the Army for three years on 11 May 1994 and was assigned to Fort Campbell, Kentucky.

On 6 October 1994 the applicant was counseled for lying to an NCO on two separate occasions and for missing a dental appointment.

On 18 October 1994 the applicant underwent a cystoscopy for unspecified voiding dysfunction.  A 18 October 1994 memorandum from the Fort Campbell medical activity indicates that the applicant’s behavior while hospitalized was disruptive, unprofessional, and lacked military courtesy.

The applicant was counseled on 25 October 1994 for missing formation.  On 8 November 1994 the applicant received nonjudicial punishment under Article 15, UCMJ, for missing this formation. 
 
On 27 October 1994 the applicant was barred from reenlisting.

A 14 December 1994 military police report indicates that the applicant was arrested for driving while intoxicated and for property damage with a vehicle.

A 19 December 1994 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1. 

A 4 January 1995 report of mental status evaluation indicates that the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, and met the medical standards for retention in the Army.  He was psychiatrically cleared for any administrative action deemed appropriate.

The applicant was counseled on 25 January 1995 for failing to report for duty two days in a row.  He was AWOL from 
25 January until 30 January 1995.

On 3 February 1995 the applicant’s commanding officer initiated action to separate the applicant for a pattern of misconduct, under the provisions of Army Regulation 635-200, paragraph 14-12b.  That official stated that he was recommending that the applicant receive a general discharge.

The applicant consulted with counsel and stated that he had been advised of the basis for the contemplated action, its effects, and the rights available to him.  He stated that he understood the nature and consequences of the general discharge that he might receive.  He declined to submit a statement in his own behalf.

The applicant’s commanding officer recommended to the separation authority that the applicant be separated from the Army and that he receive a general discharge.  On 
7 February 1995 the separation authority approved that recommendation.  The applicant was discharged on 
14 February 1995.  He had 9 months and 14 days of active service.

On 8 August 1995 the VA denied the applicant’s claim for service connected disability for a voiding dysfunction, stating that that condition existed prior to his service and was not aggravated by his service. 

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.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.

Army Regulation 40-501, paragraph 3-3b(1), as amended, 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, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a
member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

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 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, and advisory opinion(s), it is concluded:

1.  The applicant’s discharge for misconduct was warranted based on the evidence of record.  The discharge proceedings were conducted in accordance with applicable regulations with no evidence of procedural errors which would tend to jeopardize his rights.  The character of his discharge is commensurate with the applicant’s overall record of military service.  The Board notes that the applicant could have received an under other than honorable conditions discharge.

2.  The applicant’s continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

3.  The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation.  Neither he or counsel has submitted probative medical evidence to the contrary.  The Board notes that he could not be referred for disability processing because of the initiation of separation action for misconduct.  Be that as it may, he did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation. 

4.  Neither the applicant nor counsel has submitted  probative evidence or a convincing argument in support of his request. 
5.  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.

6.  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