MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 February 2002
         DOCKET NUMBER: AR2001061570

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Ms. Celia L. Adolphi		Member
Mr. John T. Meixell		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 effect, that his separation document (DD Form 214) be corrected to reflect that he was honorably discharged by reason of physical disability.

APPLICANT STATES: In effect, that his uncharacterized discharge was upgraded to honorable after his personal appearance at the Dallas Federal Building on 30 January 1998 and he has been granted service connected disability by the Department of Veterans Affairs (VA). He further states that since his status has been upgraded, his DD Form 214 should be corrected to reflect that he was honorably discharged, in order to coincide with his VA records.

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

The applicant enlisted in the Regular Army in the pay grade of E-4 on 1 October 1996, for a period of 4 years, under the training enlistment and loan repayment programs.

On 17 November 1996, while undergoing training at Fort Benning, Georgia, the applicant was counseled by his drill instructor. The counseling indicated that the applicant had been taken to the hospital the previous day because he fell and injured his knee. He was issued a physical profile and was advised that he was to abide by the profile so that he could recover as fast as possible; however, he needed to continue to go to all training events, to participate as much as possible, within the limits of his profile, to prevent missing training and having to be re-started. The applicant concurred with the counseling.

On 27 November 1996, he was again counseled in regards to his having missed too much training, his refusal of FTU (First Training Unit) or restart, and lack of motivation or inability to adapt to the military. The text of the counseling indicates that the applicant had missed too much training to continue because he would not graduate with his company. His options were explained to him and he refused to restart with another company. He was advised that if he continued to refuse a restart, he could receive an entry-level separation (ELS) when his profile expired. The applicant concurred with the counseling.

The applicant was again counseled on 6 December 1996 regarding his having been returned to duty by his doctor and his refusal to restart and finish his training. He was advised that due to his lack of motivation to complete his training, he was being recommended for an ELS. The applicant concurred with the counseling.

Accordingly, the applicant was recommended for ELS under Chapter 11, Army Regulation 635-200, because he could not meet the minimum standards prescribed for successful completion of training due to lack of aptitude, ability, motivation or self discipline. The applicant indicated that he understood that he would receive an uncharacterized separation, that he did not desire a medical examination prior to separation, and that he did not desire to consult with counsel or submit matters in his own behalf. However, 3 days later (9 December 1996) the applicant submitted a statement in his own behalf, whereas, he asserted that his motivation had terminally declined and he no longer wanted to participate in any further training. He also indicated that it was his sincere wish to be separated from the Army at the earliest possible date with an ELS.

The recommendation for separation was approved by the appropriate authority on 13 December 1996 and the applicant was discharged on 23 December 1996, under the provisions of Army Regulation 635-200, chapter 11, by reason of entry level performance and conduct. His service was uncharacterized and he had served 2 months and 23 days of total active service.

On 25 March 1997, the VA granted the applicant a 10% service-connected disability compensation for his right knee/leg condition, to be effective 24 December 1996.

On 27 July 1997, the applicant applied to the Army Discharge Review Board (ADRB) to have his uncharacterized discharge changed to an honorable discharge by reason of physical disability. He requested a personal appearance before that board and was granted an appearance before the ADRB Traveling Panel in Dallas, Texas on 30 January 1998. After reviewing the evidence of record as well as the testimony provided by the applicant, the ADRB determined that the applicant had every opportunity to receive medical care through the military and yet chose instead to receive an ELS. The ADRB determined that he had been properly discharged, that his service was properly characterized as “Uncharacterized” and voted unanimously to deny his request.

Army Regulation 635-200, chapter 11 provides the policies and procedures for separating individuals who are in an entry level status (180 days or less) who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline. It provides that service under this provision will be uncharacterized unless the Secretary of the Army determines that a characterization of honorable is warranted by unusual circumstances involving personal conduct and performance of duty.

Title 38, Unites States Code, sections 310 and 331, permits the Department of Veterans Affairs (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.

Army Regulation 635-40, Physical Evaluation for Retention, Retirement or Separation, provides, in pertinent part, that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. Such determinations are made prior to separation and determine the method by which individuals will be separated.

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 this requirement.

2. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights. Accordingly, the type of discharge directed and the reasons therfore were appropriate considering all of the available facts of the case.

3. The applicant was afforded the opportunity to remain on active duty to receive treatment and rehabilitation in order to complete his training and elected not to do so. Inasmuch as he had less than 180 days of active service, his service was properly uncharacterized and the Board finds no basis to characterize it as honorable.

4. The VA is not required by law to determine medical unfitness for further military service. That determination is made by the service concerned. The VA can, however, in accordance with its own policies and regulations, award 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. Furthermore, the VA may evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency’s examination and finding, while the Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5. The applicant’s contention that his uncharacterized discharge was upgraded to honorable after his hearing on 30 January 1998, appears to be without merit. The evidence of record clearly shows that his application was denied and he has failed to show otherwise.

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

___jm___ __rvo ___ __cla ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061570
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/02/28
TYPE OF DISCHARGE	UNCHAR
DATE OF DISCHARGE	1996/12/23
DISCHARGE AUTHORITY	AR635-200/CH11
DISCHARGE REASON	ELS
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 516	144.2900/A29.00
2.
3.
4.
5.
6.