MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 September 2001
         DOCKET NUMBER: AR2001057531

         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. Deyon D. Battle		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Lester Echols		Member
Mr. Ronald E. Blakely		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 uncharacterized discharge be changed to a medical discharge.

APPLICANT STATES: That, although he had persistent medical problems and was in and out of the hospital, he was told that he could only get an uncharacterized discharge because of the length of his service. In support of his application he submits a letter dated 17 April 1996, from the Department of Veterans Affairs (DVA) that shows he was awarded a 10 percent service connected disability rating for impairment of femur.

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

On 6 May 1994, he enlisted in the Army for 3 years in the pay grade of E-4.

On 9 August 1994, the applicant was counseled for being absent from his place of duty and for going to the Judge Advocate General without going through his chain of command. He was informed that he would receive an Article 15 for his actions and that he should use his chain of command in the future.

The applicant underwent a fit for duty examination on 22 August 1994 and he was determined to be unable to musculoskeletally adapt to an extremely active lifestyle. The physician recommended that the applicant be administratively discharged.

On 30 August 1994, he was recommended for separation in accordance with Army Regulation 635-200, chapter 11 based on entry level performance and conduct. The commander stated that the applicant had failed to adhere to standards expected of initial entry training soldier. The commander further stated that the applicant had failed to comply with directives from his chain of command on more than one occasion and did not display any motivation in group activities. He continued by stating that the applicant continually displayed an overall poor attitude and lack of discipline and that he had been on a medical profile since 22 June 1994 because he had been unable to participate in the majority of training.

The applicant was counseled again on 1 September 1994. He was informed that he was being recommended for an entry level separation as a result of his performance and medical status.

On 6 September 1994, the applicant was notified that action to eliminate him from the Army had been initiated. He acknowledged receipt of the notification on 7 September 1994 and, after consulting with counsel, he waived his rights and he opted not to submit a statement in his own behalf.

The appropriate authority approved the recommendation for discharge on 12 September 1994. Accordingly, on 15 September 1994, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 11 based on entry level performance and conduct. He had completed 4 months and 10 days of total active service and the character of his service was uncharacterized.

On 17 April 1996, the DVA awarded a 10 percent service connected disability rating for impairment of femur.

On 17 June 1998, the Army Discharge Review Board denied the applicant’s request for a recharacterization of his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 11, of that regulation provides, in pertinent part, for the separation of personnel because of unsatisfactory performance or conduct (or both) while in an entry level status. The policy applies to individuals who have demonstrated that they are not qualified for retention because they cannot meet the minimum standards prescribed for successful completion of training because they lack the aptitude, ability motivation or self-discipline for military service, or that they have demonstrated characteristics not compatible with satisfactory continued service.

Army Regulation 635-5-1, in effect at the time, prescribed the narrative reasons and regulatory authority for separation from active duty. It stated, in pertinent part, that individuals involuntarily separated under the provisions of Army Regulation 635-200, chapter 11, would be issued a narrative reason for separation of "Entry level status performance and conduct”.

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.




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 applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2. The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3. 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. It does not, in itself, establish physical unfitness for Department of the Army purposes. He clearly failed to adhere to standards expected of an initial entry training soldier. Therefore, there was no basis for processing the applicant for discharge through medical channels.

4. 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.

5. 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

__js_____ ___reb__ ___le____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001057531
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/09/25
TYPE OF DISCHARGE	UNCHAR
DATE OF DISCHARGE	19940915
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	516
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 516	144.2900
2.
3.
4.
5.
6.