MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 08 JANUARY 2002
         DOCKET NUMBER: AR2001062611

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Mr. Roger W. Able		Member
Mr. Terry L. Placek		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, physical disability retirement or separation.

APPLICANT STATES: In effect, that he was denied unemployment compensation [by the state of Kentucky] because he did not complete his first full term of active service. He requests that his DD Form 214 be corrected in order to receive unemployment benefits.

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

The applicant enlisted in the Army for three years on 15 October 1999, completed training, and was assigned to Fort Hood, Texas.

On 14 May 2000, the applicant was counseled for disobeying a direct order and for underage drinking. The applicant was arrested for speeding and driving under the influence.

In an undated letter a probation officer from the United States District Court, Western District of Texas, on Fort Hood, informed the applicant’s commanding officer that the applicant was placed on probation for 1 year commencing on 9 June 2000.

On 21 June 2000, the applicant was counseled for not making a car payment.

On 14 September 2000, the applicant received a bar to reenlistment because he tested positive on an urinalysis test.

On 16 October 2000, the applicant received nonjudicial punishment under Article 15, UCMJ, for wrongfully using cocaine.

On 19 October 2000, the applicant received counseling concerning his responsibilities while he was in the Army Drug and Alcohol Prevention Control Program (ADAPCP).

On 27 November 2000, the Signature Loan Company informed the applicant’s first sergeant of the applicant’s indebtedness to that company.

On 28 April 2001, the applicant was counseled for misconduct – public intoxication. On 30 April 2001, he received nonjudicial punishment for failing to follow an order, in that he was arrested for being drunk and disorderly.

A 7 May 2001 radiologist’s report of the applicant’s thoracic spine indicated that the applicant hurt his back during basic training when he fell from a 10-foot high balance beam and that he had recurring pain since then. The report showed that he had mild, apparently old, partial compression fractures at T9 and 10 with associated post traumatic degenerative spurs.
In May 2001 the applicant’s commanding officer notified the applicant that he was initiating action to discharge the applicant under the provisions of Army Regulation 635-200, paragraph 12c, for commission of a serious offense – wrongful use of cocaine. He indicated that he was recommending that the applicant receive a discharge under honorable conditions.

The applicant consulted with counsel and stated that he had been advised of the basis for the contemplated action, its effects, the rights available to him, and any action taken by him in waiving his rights. He indicated that he submitted a statement in his own behalf; however, there is no such statement in his record. The applicant stated that he understood the nature and consequences of the general discharge that he might receive.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged for misconduct. On 12 June 2001 the separation authority approved the recommendation. The applicant was discharged on 29 June 2001. He had 1 year, 6 months, and 15 days of service, and 58 days of lost time because of civil confinement.

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, convictions by civil authorities, desertion or absence without leave. Paragraph 14-12c states in pertinent part, that abuse of illegal drugs is serious misconduct. 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 for misconduct. However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.

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 office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40 provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his 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.
That regulation also states, in pertinent part, that an enlisted soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provisions which authorizes a characterization of service of under other than honorable conditions.

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 was discharged from the Army because of his misconduct. There is no evidence nor has the applicant submitted any to show that he was physically unfit at the time of his discharge. His continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

2. The applicant did not have any medically unfitting disability which required physical disability processing. Furthermore, the applicant could not have been referred for physically disability processing had he an unfitting condition because of the nature of his separation action. There is no basis for physical disability retirement or separation.

3. 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 that requirement.

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

__LLS___ __RWB __TLP___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062611
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020108
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.