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ARMY | BCMR | CY1997 | 9710976
Original file (9710976.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his general under honorable conditions discharge be upgraded to an honorable discharge and that the reason for separation be changed to a medical discharge.
APPLICANT STATES : In effect, he broke his ankle while he was on maneuvers. The ankle is still causing him pain in the ankle, foot and back. He would like the honorable and/or medical discharge so he would receive treatment and more benefits. He submits statements from his German doctors (in German) as supporting documentation.

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

He was born on 29 July 1960. He initially enlisted in the Regular Army on 28 August 1979 and served continuously until his discharge.

On 7 November 1986, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to physical training formation.

On 2 June 1987, the applicant accepted NJP under Article 15, UCMJ for failing to obey a lawful order and operating a passenger vehicle in a reckless manner.

On 1 November 1987, the applicant accepted NJP under Article 15, UCMJ for operating a passenger car while drunk.

On 16 November 1987, the applicant received a general officer reprimand for driving while intoxicated.

On 3 January 1988, the applicant accepted NJP under Article 15, UCMJ for disobeying a lawful order.

On 21 March 1989, the applicant received a local bar to reenlistment.

On 29 October 1990, the applicant underwent a mental status evaluation. The examining physician found the applicant to be mentally capable of understanding and participating in board proceedings.

Complete medical records are not available. On 29 October 1990, the applicant completed a separation physical and was found qualified for separation. The applicant noted his ankle problem on his Report of Medical History, but he also noted that he was in good health.
On 4 December 1990, the applicant’s commander initiated action to separate him under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance.

The applicant waived consulting counsel, waived consideration of his case by an administrative board, and elected not to submit a statement in his own behalf.

On 14 January 1991, the appropriate authority approved the recommendation and directed the soldier be issued a general discharge.

On 15 February 1991, he was discharged, in pay grade E-4, under the provisions of Army Regulation 635-200, Chapter 13, unsatisfactory performance, with a general discharge. He had completed 11 years, 5 months and 18 days of creditable active service and had no lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 of that regulation provides, in pertinent part, that a member may be separated when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. Commanders will separate a soldier for unsatisfactory performance when it is clearly established that, in the commander’s judgment, the soldier will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. Paragraph 3-2 of that regulation states that, when a soldier is being processed for separation or retirement for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation or retirement, creates a presumption that the soldier is fit. The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability. There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

Conversation with the Washington, D.C. VA office on 9 June 1998 indicates the applicant is already receiving all the VA medical benefits he would be entitled to even if he had an honorable or a medical discharge from the Army.

 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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. He waived his right to consideration of his case by a board of officers. His record of disciplinary actions during that term of enlistment does not warrant a characterization of fully honorable.

3. The applicant noted he was in good health at the time of his separation. He has not submitted any evidence to overcome the presumption of fitness doctrine. He is already receiving the maximum VA medical benefits that would be available to him with any type of discharge.

 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

 DENY APPLICATION




Loren G. Harrell
                                             Director
                                                      

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