APPLICANT REQUESTS:  That his records be corrected to show that he was honorably discharged based on a physical disability (glomerulonepritis: an infection of the kidneys).

APPLICANT STATES:  That there is substantial evidence that his medical condition started while on active duty; that insufficient medical testing was accomplished to determine whether treatment had rehabilitated him; that he was discharged while his medical condition was highly questionable; that his medical records were incomplete; and, that he was discharged as a result of an inaccurate diagnosis.

COUNSEL CONTENDS:  Counsel is silent on the issue.

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

On 16 August 1965, the applicant was inducted into the Army of the United States.  He completed his required training and was awarded MOS 71B (Clerk Typist).  He was advanced to pay grade E-4, effective 8 February 1968.

During the period 9 September 1965-25 September 1967, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on seven occasions, for his failure to repair on two occasions; his disobeying of lawful orders on 4 occasions; his misappropriation of a vehicle; his creation of a nuisance; and, for breaking restriction.  His punishments included reductions in pay grade, forfeitures of pay, restriction, and extra duty.

On 23 February 1966, he was convicted by a Summary Court-Martial (SCM), of violation of Article 92 (Violation or Failure to obey a lawful general order or regulation; failure to obey other lawful orders; or dereliction in the performance of duties), UCMJ.  His sentence included confinement at hard labor for 1 month and a forfeiture.

On 16 August 1966, he was honorably discharged and enlisted in the Regular Army the following day.


In August 1966, he began treatment for syphilis.  He continued to have problems with this ailment for the remainder of his active duty.  Medical records show that this was primarily due to him not taking the prescribed medication.

During the period 11 October 1966-27 March 1968, the applicant was assigned to a unit in Okinawa.

On 1 March 1967, security officials determined the applicant was not eligible for a security clearance on the grounds of unsuitability.  The determination was based on the following:

	a.  On 28 May 1963, he was arrested, charged with grand larceny, found guilty and adjudged a “youthful offender” by the New York City Criminal Court.

	b.  On 19 January 1964, he was arrested, charged with grand larceny an possession of burglar tools, found guilty, and sentenced to 6 months by the New York City Criminal Court.

	c.  On 6 November 1964, he was arrested, charged with burglary, found guilty and sentenced to imprisonment of    44 days by the Long Beach, California police.

	d.  He was declared a delinquent by his Draft Board # 19, Bronx, New York for failure to report for induction on  6 April 1965.  The U.S. Attorney declined to prosecute in favor of immediate induction at Los Angeles, California.

	e.  In addition to the above, a SCM and 3 NJP’s were included as part of the reason.

On 11 July 1967, he was diagnosed as having an antisocial personality and that he had no mental or physical defects sufficient to warrant disposition through medical channels.

On 2 October 1967, a physical examination cleared the applicant for separation with a physical profile of 111111A, based on an impending discharge under AR 635-212, for unfitness.

On 30 October 1967, he was treated for poisoning by morphine and other opium derivatives and for other drug addiction.

On 7 November 1967, a line of duty investigation indicated that the applicant, confined to the stockade on 24 October, and hospitalized for narcotic withdrawal on 25 October 1967, had ingested drugs during the period 15-24 October 1967 while AWOL.  The results was that his condition was not in the line of duty, but was to his own misconduct.

On 8 November 1967, he was convicted by a Special Court-Martial, of being absent without leave (AWOL) for the periods 7-12 and 15-24 October 1967; disrespect to superior commissioned and noncommissioned officers; and assault on a fellow soldier with a knife.  The results of this court-martial are not in the available records.

On 20 December 1967, the unit commander recommended the applicant appear before a board of officers to determine whether he should be separated under the provisions of AR 635-212.  The commander indicated that the applicant had been formally counselled for (1) drawing a weapon on a local national; (2) possession of a deadly weapon; (3) AWOL on two occasions; (4) wrongful appropriation; (5) creating a nuisance; (6) for discharge under AR 635-212; and, (7) for disobeying lawful orders on three occasions.  He was also advised of his rights.

On 12 January 1968, the applicant, with legal counsel, waived consideration by and personal appearance before a board of officers.

On 8 February 1968, the applicant was discharged, with an Undesirable Discharge Certificate, under AR 635-212, for unfitness.  His Report of Separation indicates that he had  2 years, 1 month and 16 days of creditable service and    126 days of lost time.

On 15 May 1978, the Army Discharge Review Board (ADRB) changed his reason for discharge from unfitness to frequent incidents of a discreditable nature with civil or military authorities under chapter 14-33B, AR 635-200 and affirmed his discharge upgrade to general under the Special Discharge Review Program.

On 23 October 1979, the ADRB denied his request for upgrade of his discharge to honorable.

On 22 July 1981, he was treated at a VA Medical Center with a diagnosis of microscopic hematuria (blood in the urine).

On 2 November 1994, almost 27 years after his separation from active duty, a VA Rating Decision awarded the applicant a service-connected disability rating of 100 percent, effective 23 February 1994, for glomerulonephritis with hypertension, requiring dialysis.

On 13 June 1997, the Medical Advisor to the Military Review Boards agency, provided and opinion (COPY ATTACHED) that indicated the applicant’s medical history was clouded by the fact that he had multiple treatments for venereal diseases and his record revealed evidence of streptococci in his urine, both would show kidney problems.  Even if glomerulonephritis had been established, a medical board could not have been initiated since any action at that time would have required a diagnosis of chronic.  There was insufficient information presented by the applicant to justify a medical separation in 1967.

AR 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established the policy and prescribed procedures for separating members for misconduct.

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, section 1201, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less that 30 percent.

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.

2.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

3.  The type of discharge directed was appropriate considering all the facts of the case.

4.  In view of the applicant’s numerous acts of indiscipline, his separation under honorable conditions was appropriate.

5.  The Board notes that the applicant has no record of complaint or treatment until 1981, 13 years after his discharge.

6.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  However, unfitting disabilities to be compensible must have been incurred while in receipt of basic pay.  In this case, the opinion furnished shows that the applicant met medical retention standards at the time of his separation.

7.  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