MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 March 2002
         DOCKET NUMBER: AR2001061592

         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Donald P. Hupman		Member
Mr. Thomas B. Redfern		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 general discharge be changed to show that
he was retired by reason of physical disability.

APPLICANT STATES: That he was discharged with 10 percent disability,
when in fact he was 70 percent disabled, which was unjust and used to discharge him from the service. He is now 100 percent disabled from the Department of Veterans Affairs (DVA). He also states that he was assigned to the 82nd Airborne Division, at Fort Bragg, North Carolina, in 1976, and was issued a P-3 profile for physical training. His conditions grew worse after a tour of duty with the 1/509th Airborne Battalion in Vicenza, Italy. His jump status terminated in 1980 and he was later reassigned to Headquarters and Headquarters Company, 4th Infantry Division, as a traffic management coordinator (71N). He goes on to state that, at that time, his first sergeant seemed to have a great dislike toward him and he felt that he was railroaded out of the service. During his reenlistment window, his first sergeant took the initiative to forward his medical records to a board and later informed him that the board had decided to discharge him with a 10 percent disability rating. He also felt that his first sergeant had a big influence on personnel in the medical field and he was extended one week past his original expiration of term of service (ETS) to allow the first sergeant to expedite his case. In support of his application he submits a personal statement, a copy of his DVA Rating Decision, dated 21 July 1997, and two DD Forms 214 (Certificate of Release or Discharge).

EVIDENCE OF RECORD: The applicant's military records show he enlisted on 22 May 1969, as a cook. He served in Vietnam from 18 June 1970 to 31 August 1970, and was honorably separated on 14 May 1971. He was transferred to the USAR Control Group (Annual Training).

After a break in service, he reenlisted on 13 March 1974, as a stock control specialist and continued to serve until he was honorably discharged on 16 December 1976, in order to reenlist. He reenlisted on 17 December 1976.

On 4 October 1977, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for violation of a lawful general regulation. His punishment consisted of a forfeiture of pay and 14 days extra duty.

He continued to serve until he was honorably discharged on 11 January 1983, in order to reenlist. He reenlisted 12 January 1983, as a traffic management control specialist (71N20).

On 13 July 1983, he was punished under Article 15, UCMJ, for altering official government documents. His punishment consisted of a reduction to the pay grade of E-4 (suspended) and a forfeiture of pay.

On 14 November 1983, he was punished under Article 15, UCMJ, for being drunk while on duty. His punishment consisted of a reduction to the pay grade of E-4.

The applicant’s medical records are unavailable for review by this Board.

The applicant’s records contain a copy of a letter, subject: Summary of MOS (military occupational specialty)/Medical Retention Board Proceedings, which is
undated. This letter states that an MOS Medical Retention Board (MMRB) was appointed on 5 December 1984. The board convened on 20 December 1984,
at Fort Carson, Colorado. The applicant appeared before the MMRB unaccompanied. The MMRB considered the evidence presented and recommended that the applicant appear before a Medical Evaluation Board (MEB). The MMRB stated that the applicant’s permanent medical condition does prevent him from performing the full range of physical tasks required of his primary military occupational specialty (PMOS) in a worldwide field environment. The MMRB further stated that, in view of the findings, it recommended that the applicant be ordered to appear before a MEB.

The applicant’s records contain a copy of a letter, dated 18 January 1985, subject; Medical Evaluation/Physical Evaluation Board Referral. This
letter stated that the 4th Infantry Division (Mechanized) MMRB had evaluated the abilities of the applicant to perform the physical requirements of his PMOS of 71N10 on 20 December 1984. It also stated that, based on a thorough review of his most recent permanent profile and all other pertinent records and reports, the MMRB had determined that the limitations imposed by his permanent profile were so prohibitive that they precluded retraining and reclassification into any MOS in which the Army had a requirement.

On 24 January 1985, he was punished under Article 15, UCMJ, for failure to go to his appointed place of duty. His punishment consisted of 7 days extra duty.

On 2 April 1985, the applicant was notified by his commander that he was being recommended for discharge under the provisions of AR 635-200, chapter 14, for misconduct. He based his recommendation on the applicant’s patterns of misconduct.

After consulting with counsel, the applicant requested a personal appearance and consideration of his case by a board of officers. He also requested representation by counsel and elected not to submit statements in his own behalf. He acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration if a discharge under other than honorable conditions were issued.

On 15 July 1985, he was ordered to appear before a board of officers on 1 August 1985, to determine if he should be discharged from the service due to misconduct before his ETS.

The applicant appeared before the board and was represented by counsel and elected not to testify in his own behalf.

On 8 August 1985, the board found the applicant unfit for further retention in the military and recommended that he be discharged from the service because of misconduct and issued a General Discharge Certificate.

On 9 August 1985, the Defense Counsel reviewed the recommendations of the board of officers. Counsel stated that the board of officers had determined that the applicant should be separated from service with a general discharge. Counsel also stated that the applicant was a Vietnam combat veteran and was pending determination of a medical discharge when the chapter 14 action was initiated. Counsel further stated that the applicant had requested that his discharge be suspended pending determination of his medical discharge. If he
was medically discharged, many administrative problems in the administration of his medical and veterans benefits would be avoided.

The appropriate authority approved the findings and recommendations of the board of officers on 29 August 1985.

The applicant was discharged on 17 September 1985, under the provisions of
AR 635-200, chapter 14, for misconduct. He had a total of 13 years, 5 months, and 28 days of creditable service.

The applicant provided a copy of his DVA Rating Decision, dated 21 July 1997,
which disclosed that the applicant was granted a 70 percent disability for his service connected conditions.

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.





Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade, or rating because of a disability incurred while entitled to basic pay.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reasons other than physical disability, his/her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he/she was unable to perform his/her duties or that acute grave illness or injury or other deterioration
of physical condition, occurring immediately prior to, or coincident with separation, rendered the member unfit.

Paragraph 4-3 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions. The commander exercising general court-martial jurisdiction over the soldier may abate the administrative separation. This authority may not be delegated. A copy of the decision, by the general court-martial convening authority (GCMCA), must be forwarded with the disability case file to the physical evaluation board. A case file may be referred in this way if the GCMCA finds that the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions, or if other circumstances warrant disability processing instead of alternate administrative action.

Title 38, United States Code, section 310 and 331, permits the DVA to award compensation for disabilities which were incurred in or aggravated by active service.

An award of a DVA rating does not establish entitlement to medical retirement or separation from the Army. Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related
to service ("service-connected") and affects the individual's civilian employability. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or 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. The Board notes the applicant’s contention that he was issued a P-3 profile for physical training. However, his medical records and P-3 profile were unavailable for review by this Board.

2. The evidence of record shows that an MMRB recommended that the applicant appear before an MEB and stated that the applicant’s condition did prevent him from performing the full range of physical tasks required of his PMOS in a worldwide environment. The evidence of record shows that a letter was prepared referring the applicant to a MEB/PEB.

3. The Board notes that the applicant was recommended for discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct. He appeared before a board of officers and was found unfit for further retention in the military and was recommended for discharge based on his misconduct.
This board action effectively stopped any further physical evaluation processing.
Therefore, he is not entitled to a change in his discharge to show that he was retired by reason of physical disability.

4. The rating action by the DVA does not necessarily demonstrate any error or injustice on the part of the Army. The DVA, operating under its own policies and regulations, assigns disability ratings as it sees fit. Any rating action by the DVA does not necessarily constitute an error or injustice on the part of the Department.

5. The applicant was discharged in accordance with applicable laws and regulation with no indication of any violation of his rights. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

6. 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.








7. 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

__fe___ ___dh___ ___tr___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061592
SUFFIX
RECON
DATE BOARDED	20020305
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19850917
DISCHARGE AUTHORITY	AR 635-200 c, 14-12b
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189/360
2.
3.
4.
5.
6.