MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:        
	 

	BOARD DATE:            23 December 1998
	DOCKET NUMBER:   AC97-10923

	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. 


M

Member

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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 general discharge be changed to a medical discharge.

APPLICANT STATES:  That while he was in the Army, he requested a change of his military occupational specialty (MOS) as a result of his medical condition.  He contends that his request was denied causing his condition to worsen.  He further states that he was placed on a permanent profile as a result of his condition and he was assigned a MOS that he had not requested.  In support of his appeal, he submits excerpts of a transcript of testimony from a court proceeding indicating that the applicant was performing the duties of an automotive repair parts specialist.  He also submits a letter from the Department of Veterans Affairs (VA), dated 22 August 1991, denying his claim for service connected disability for a right leg scar, hemorrhoids, back problems, intestinal problems, nervous condition, and post traumatic stress disorder.  He further submits a rating decision from the Veterans Administration Regional Office in Alabama granting him 10 percent service-connected disability for a testicle condition, a portion of a VA rating decision granting him 10 percent service-connected disability for hypertension, and a medical summary from a doctor, dated 23 September 1991, who opines that the applicant is totally disabled for gainful employment because of the presence of pain while at rest and during activity.

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

On 19 August 1969, he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as a cook.  He was honorably discharged and transferred to the USAR Control Group on 4 April 1972, after he completed 2 years, 7 months and 16 days of total active service.

He enlisted in the Army again on 7 September 1973 and he continued to perform the duties of a cook.  Shortly thereafter, he completed training as a automotive repair parts specialist. 

Nonjudicial punishment (NJP) was imposed against the applicant on 7 January 1974 for failure to go to his appointed place of duty.  His punishment consisted of a reduction in pay grade.







The applicant was convicted by a special court-martial on 28 May 1974, of two specifications of failure to go to his appointed place of duty, one specification of being AWOL, and one specification of disobeying a lawful order.  His sentence consisted of confinement at hard labor and a forfeiture of pay.

On 22 October 1974, NJP was imposed against him for being absent from his place of duty.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.  

He had NJP imposed against him on 19 February 1975, for striking another enlisted member in the face.  His punishment consisted of a forfeiture of pay and extra duty.

On 2 April 1975, he had NJP imposed against him a fourth time for being AWOL from 31 March until 2 April 1975.  His punishment consisted of a forfeiture of pay and extra duty.   

On 8 September 1975, the applicant was convicted by a special court-martial of two specifications of failure to go to his appointed place of duty.  His sentence consisted of confinement at hard labor and a forfeiture of pay.

The applicant underwent a mental status evaluation on 12 December 1975.  He was found to be mentally responsible, able to distinguish right from wrong, able to adhere to the right, able to understand and participate in board proceedings, and he met the retention standards as prescribed in Army Regulation 40-501.  He was found to have no significant mental illness.

On 15 December 1975, the applicant was notified that action to eliminate him from the Army under the provisions of Army Regulation 635-200, chapter 13 had been initiated.  The commander cited his inability to expend efforts constructively as a basis for his recommendation for discharge.  After consulting with counsel, he waived his right to have his case considered before a board officers and he opted not to submit a statement in his own behalf. 

The recommendation for discharge was approved by the appropriate authority on 17 December 1975.  Accordingly, on 19 December 1975, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13, for unsuitability.  He had completed 4 years, 7 months and 10 days of total active service and he was issued a General Discharge Certificate.




The available records fail to reveal that the applicant had any medical condition which resulted in his being disqualified for further retention in the Army or which resulted in his being unfit to perform his assigned duties. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsuitability, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

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.

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 the aforementioned requirement.

2.  The contentions of the applicant have been noted by the Board.  However, there is no evidence of record, nor has the applicant submitted any evidence to support his contention that he had a medical condition that was ignored at the time of his discharge from the Army or that he was assigned an MOS that he had not requested.  The discharge process was in accordance with applicable law and regulations and the applicant's service was appropriately characterized.

3.  In the absence of evidence to the contrary, in reasonable to presume that what the Army did in his case was correct.

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

__ro ____  __le ____  __kak ___  DENY APPLICATION




						Loren G. Harrell
						Director


INDEX

CASE ID
AC97-10923/AR1998013085
SUFFIX

RECON
 
DATE BOARDED
1998/12/23
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  A40.00

2.  A40.04

3.  A71.00

4.  A92.23

5.

6.