MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 March 2001
         DOCKET NUMBER: AR2001051795

         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. Carl W. S. Chun		Director
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Roger W. Able		Chairperson
Mr. Allen L. Raub		Member
Ms. Gail J. Wire		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: That his discharge under other than honorable conditions be upgraded to honorable or a medical discharge.

APPLICANT STATES: In effect, that he was sick with a hyperthyroid condition during the last 12 months of his military service and that due to this illness his behavior was less than acceptable. He contends that his thyroid condition was not diagnosed by the Army until two months prior to his discharge, that he received radiation treatments for this condition and that he was not given a continuous prescription or medication for his condition. He goes on to state that when he had a heart attack he found out that he needed to take medication for the rest of his life for his thyroid condition. As a result of not taking any medication, he now has an enlarged heart and is not able to qualify for any medical benefits. He has been paying for his medication for the last 20 years. In support of his application, he submits a letter of explanation dated 13 December 2000 and VA Form 21-526e (Veteran’s Application for Compensation or Pension at Separation from Service).

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

The applicant enlisted on 27 August 1981 for a period of 3 years. After completion of basic and advanced individual training, the applicant was transferred to Germany for duty as a self-propelled field artillery system mechanic.

On 16 August 1982, nonjudicial punishment was imposed against the applicant for using disrespectful language toward a superior noncommissioned officer. His punishment consisted of a reduction to pay grade E-1 (suspended for 6 months), a forfeiture of pay and extra duty and restriction. The suspension of the punishment was vacated on 21 October 1982.

A bar to reenlistment was imposed against the applicant on 7 October 1982 due to the applicant’s total disregard for military authority, his habitual tardiness and disrespectful behavior.

On 28 October 1982, nonjudicial punishment was imposed against the applicant for using disrespectful language toward a superior noncommissioned officer. His punishment consisted of a forfeiture of pay (suspended for 6 months) and extra duty and restriction. The suspension of the punishment was vacated on
16 November 1982.

On 27 January 1983 the applicant was convicted by a special court-martial of being disrespectful toward a superior commissioned officer and being disrespectful in deportment toward a superior noncommissioned officer. He was sentenced to be reduced to private (E-1), to forfeit $382 per month for 3 months and to be confined at hard labor for 3 months.
On 16 February 1983 the applicant was diagnosed with a hyperthyroid and was issued a temporary 3 Physical Profile under physical capacity or stamina. This profile expired on 1 March 1983.

On 3 March 1983 the applicant was assigned to the United States Army Correctional Activity for training.

While in the training program, the applicant was cited on 28 March 1983 for violating the limitations of a physical profile by playing basketball.

On 29 March 1983 the applicant underwent a discharge evaluation in accordance with Army Regulation 635-200, chapter 14. The evaluation states that “SM [service member] is being treated for a thyroid condition however he tends to manipulate and blame his problems on this thyroid condition instead of accepting the responsibility for his own actions”. The evaluation also states that “His mental status is within normal limits at this time. He is clear for any administrative or judicial action deemed appropriate by command”.

After four weeks in the training program, on 4 April 1983, the applicant’s unit commander recommended that he be eliminated from the Army under the provisions of Army Regulation 635-200, chapter 14. He based his reason for separation on the applicant’s unsatisfactory performance record and lack of motivation and military attitude to successfully complete the training program.

On 14 April 1983, nonjudicial punishment was imposed against the applicant for possession of marijuana. His punishment consisted of a forfeiture of pay (suspended) and extra duty and restriction (suspended).

The facts and circumstances surrounding the applicant’s discharge are not contained in the available records. However, the applicant’s DD Form 214 shows he was discharged under other than honorable conditions on 18 April 1983 under the provisions of Army Regulation 635-200, chapter 14, for misconduct (pattern of misconduct).

There is no evidence in the available records which shows the applicant underwent a medical separation examination prior to his discharge.

There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

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, and convictions by civil authorities. 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

Army Regulation 40-501, chapter 7, physical profiling, provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity.

To make a profile serial more informative, two modifiers are used: "P" (permanent) and "T" (temporary). The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity. In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

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. The Board considered the applicant’s contention that he was sick with a thyroid condition during the last 12 months of his military service and that due to this illness his behavior was less than acceptable. However, there is no evidence of record, and the applicant has provided no evidence, to support this contention.

2. Medical evidence of record does show the applicant was diagnosed with a hyperthyroid on 16 February 1983 and was issued a temporary 3 Physical Profile under physical capacity or stamina. This physical profile expired on 1 March 1983.

3. The applicant’s records also show that while in the United States Correctional Activity he was cited for violating the limitations of a physical profile on 28 March 1983 by playing basketball. However, in the absence of evidence to the contrary, it must be presumed that the applicant’s separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct (pattern of misconduct), was administratively correct and in conformance with applicable regulations.

4. Accordingly, the type of discharge directed and the reasons for separation appear to be appropriate considering all of the facts of the case.

5. After careful review of the applicant’s record of service which included a bar to reenlistment, three nonjudicial punishments and one special court-martial, the Board determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

6. Since the applicant’s medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

7. 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 this requirement.

8. 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

RWA___ ALR_____ GJW____ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001051795
SUFFIX
RECON
DATE BOARDED	20010327
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	19830418
DISCHARGE AUTHORITY	AR 635-200 Chapter 14
DISCHARGE REASON	Misconduct (Pattern of Misconduct)
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.