MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 24 February 1999
         DOCKET NUMBER: AC97-11329/AR1999-015953

         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. Loren G. Harrell		Director
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Calvin M. Fowler		Chairperson
Mr. Mark D. Manning		Member
Ms. Barbara J. Ellis		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)

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APPLICANT REQUESTS: In essence, that his honorable discharge from active duty on 22 July 1963 be changed to a medical retirement.

APPLICANT STATES: In essence, that at the time he was separated from active duty he was unable to perform his duties. Therefore, he should have been retired with disability.

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

He enlisted in the Regular Army (RA) on 15 August 1960 for 3 years and military occupational specialty ( MOS) 762 (Engineer Supply Specialist). The highest grade he achieved was pay grade E-3.

The evidence available shows that on 16 September 1960, while in basic training, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 8-11 September 1960. His sentence included forfeiture of pay.

On 27 March 1961, he was assigned to Fort Bliss, Texas. On 8 May 1961, he requested a compassionate reassignment to White Sands Missile Range, New Mexico. He alleged that his wife was ill and unable to care for their two young children. Some time prior to this date he had come down on reassignment orders to Germany. On
26 June 1961, the applicant's request for a compassionate reassignment was denied after his wife's medical condition was evaluated.

On 3 July 196, the applicant's request for a hardship discharge was denied. It was concluded that his circumstances were not of such and extreme nature as to warrant a hardship discharge.

On 31 July 1961, the applicant was assigned to the 293^rd Engineer Battalion, Germany. On 16 December 1961, he reported to sick call and did not report back to his place of duty until 18 December 1961. He had remained at his place of residence in an AWOL status for 2 days. He was reduced from pay grade E-3 to pay grade E-1, most likely by nonjudicial punishment.

On 2 July 1963, the applicant's medical separation examination found him to be physically fit for separation. His rotation date back to the United States (US) was
15 July 1963. On 22 July 1963, he was transferred to the United States Army Reserves (USAR) with a general discharge under the provisions of Army Regulation 635-205. He had completed 2 years, 11 months, and 4 days of active military service. He also had
4 days lost time due to being AWOL.

On 22 July 1963, the applicant authenticated a document with his own signature certifying that his physical condition had not changed since his physical examination.
On 31 July 1966, he was separated from the USAR with an honorable discharge.

On 21 September 1970, a Department of Veteran Affairs (DVA) Rating Decision shows that the DVA determined the applicant was 40% disabled. He received a 10% disability rating due to fibrositis, and a 30% disability rating for residuals, spontaneous pneumothorax, postoperative.

In connection with his application, the Medical Advisor to this Board, opined (COPY ATTACHED), in essence, that there are no medical records to indicate that the applicant sought medical treatment on 16 July 1962 after an alleged nervous collapse due to harassment by his first sergeant. Additionally, his medical records and separation physical, dated 22 July 1963, notes no disqualifying conditions. He was found fit and qualified for separation. There is no medical basis to support a change in his discharge status.

The above advisory opinion was referred to the applicant for comment or rebuttal, but he failed to respond.

Title 10, United States Code, at chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay. However, a disqualifying medical condition existing prior to entrance into active service is not a basis to determine eligibility for a medical discharge.

Title 38, United States Code, section 310 and 331, permits the DVA to award compensation for a medical condition(s) which was incurred in or aggravated by active military service. The DVA, however, is not required by law to determine medical fitness for further military service. The DVA, 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 DVA benefits based on an evaluation by that agency.

Army Regulation 635-205, then in effect, provided that enlisted members of the RA and of the Reserve components who, upon arrival in the US with less than 3 months remaining before expiration of terms of service (ETS), would be released from active duty, and returned to any former National Guard or Army Reserve status, or would be released from active duty and transferred to the Army Reserve to complete their military service obligation.

On 23 July 1969, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge from general to honorable. There is no indication that the applicant has ever applied for a medical discharge.

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. 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 applicant was properly separated in accordance with the regulations then in effect, governing the Early Release of Overseas Returnees. The applicant returned from Germany and was separated on 22 July 1963, 26 days before his adjusted
3 year service obligation expired on 18 August 1963.

3. The applicant received a medical/physical evaluation just days prior to his discharge. There is no evidence of any medical condition, which rendered the applicant medically, unfit and justified physical disability processing. The applicant's DVA record shows nothing to the contrary nor has the applicant provided any medical probative evidence.

5. The fact that the DVA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes.

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

JDM_____ MDM_____ BJE_____ DENY APPLICATION



                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC97-11329/AR1999-015953
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	24 February 1999
TYPE OF DISCHARGE	(GD)
DATE OF DISCHARGE	19630722
DISCHARGE AUTHORITY	AR635-205
DISCHARGE REASON	Expiration Term of Service
BOARD DECISION	(NC)
REVIEW AUTHORITY
ISSUES 1.	Request medical discharge.
2.
3.
4.
5.
6.