MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 07 MARCH 2002
         DOCKET NUMBER: AR2001063521

         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. Raymond V. O’Connor		Chairperson
Mr. John P. Infante		Member
Ms. Regan K. Smith		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 discharge.

APPLICANT STATES: In effect, that his general discharge under current standards would warrant a change to an honorable discharge. His general discharge was overly punitive. The injuries he sustained have proven to be long term that went undiagnosed while he was on active duty. At no time while he was on active duty did he demonstrate irresponsible or violent conduct. He has good post service conduct, including gainful employment and support of a child. He is a law abiding citizen, and has no police record or outstanding warrants.

In 1989 he was diagnosed as having residuals from fractured ribs and pneumothorax of the right lung, and could only work for brief lengths of time without aggravating his injuries. He has applied to the VA for benefits on various occasions with limited success. His VA rating is currently under review.

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

The applicant enlisted in the Army for three years on 2 November 1987, completed basic training and advanced training as a motor transport operator, MOS 88M00. In March 1988 he was assigned to Fort Benning, Georgia for airborne training.

A 12 April 1988 medical report shows that the applicant was treated for rib pain. The applicant complained of pain after landing on his right side. Another medical report indicates the applicant’s condition was diagnosed as pneumothorax. A 24 May 1988 medical report shows that he reported to the medical clinic for follow up of pneumothorax and fractured ribs. That report indicates that he did not complain of any pain; however, felt swelling in his chest when he ran. The report indicates that there was no sign of swelling, he had full rotation, and a scar from the pneumothorax tube. He was recovering from the injury to his right side.

In June 1988 the applicant was transferred to Fort Drum, New York.

The applicant’s record shows that he was counseled on 14 occasions from June 1988 to April 1989 for his conduct and for various infractions of rules and regulations, to include failure to report to his place of duty, wrongful disposition of military property, failure to comply with uniform standards, failure to obey a lawful order, failure to follow instructions, poor attitude, unprofessionalism, lack of discipline, lack of motivation, and sexual harassment.

On 11 October 1988 the applicant received nonjudicial punishment under Article 15, UCMJ, for failing to secure his weapon and failure to go to his place of duty. On 1 March 1989 he received nonjudicial punishment for disrespect to a commissioned officer, failure to obey a lawful order, and disrespect to an NCO. On 3 May 1989 he received nonjudicial punishment for failure to obey a lawful order.

On 30 May 1989 the applicant’s commanding officer notified the applicant that he was initiating action to discharge him for misconduct, commission of a serious offense, under the provisions of Army Regulation 635-200, paragraph 14-12c. He recounted the applicant’s offenses, to include failure to be at his appointed place of duty, failure to follow orders, and sexual harassment, and stated that if tried by court-martial, the applicant could receive a punitive discharge. He stated that he was recommending that the applicant receive a general discharge.

The applicant consulted with counsel, stated that he had been advised of the basis of the contemplated action, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights. He stated that he understood the nature and consequences of the general discharge that he might receive. He stated that he performed to his potential, that it was difficult for him to understand the technical counseling, and much of the problem could be attributed to the aggressive behavior of the NCOs.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged and that his service be characterized as under honorable conditions. He indicated that the record of mental status evaluation, and record of medical history and medical examination were enclosed with his recommendation. On 6 June 1989 the separation authority approved the recommendation. The applicant was discharged with a general discharge on 19 June 1989 for misconduct – commission of a serious offense. He had 1 year, 7 months, and 18 days service.

A 20 October 1989 VA medical report shows that the applicant’s condition was diagnosed as residual, fractured ribs, right, with pneumothorax, right lung; and musculoligamentous strain, right knee.

On 22 November 1989 the VA informed the applicant that his right pneumothorax, status post thorocostomy scar was service connected, but less than 10 percent and therefore not compensable.

On 17 March 1994 the Army Discharge Review Board denied the applicant’s request to upgrade his discharge, but did direct that the reason for his discharge be changed to “misconduct.”

A 27 June 1997 VA medical record shows that the applicant underwent an examination of his chest and ribs, and there was no evidence of pneumothorax, pleural fibrosis, or pulmonary parenchymal fibrosis. The applicant continued to be seen by the VA in 1997 and 1998 because of complaints of pain to his chest.

A 13 January 1998 VA rating decision continued the applicant’s service connected disability of his right pneumothorax with thoracostomy at zero percent, and determined that the applicant had submitted no evidence for that agency to reopen his claim for service connection for right rib fractures. A 28 September 1998 VA rating decision resulted in the same determination, as did a 12 February 2000 rating decision.

A February 2000 medical report from the Clinic of Physicians & Surgeons, LTD., in Mesa, Arizona indicates that the applicant’s condition was diagnosed as right flank pain and right knee pain, as a result of falling from a ladder in January 2000. A separate report shows that he was evaluated for right side back pain. There were no deformities. His lungs were clear. There was decreased range of motion of the lumbar spine, but it was improved from his previous visit. He was cleared for return to work in March. He was seen again in April 2000. His condition was diagnosed as chest wall pain and hypertension. He was informed that his chest wall pain was likely a response to his chest tube.

A 28 August 2000 medical report from the Desert Pulmonary Consultants, P. L. C., in Mesa, indicates that the applicant’s condition was diagnosed as residual chest wall pain, and possibly some element of pleural adhesion and inflammation. The physician stated that she suspected that his chest pain would be chronic and intermittent in nature.

On 14 August 2001 the VA granted the applicant a 10 percent service connected disability rating for intermittent right chest wall pain, effective 6 October 2000.

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. Paragraph 14-12c states that soldiers are subject to separation for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the MCM. An under other than honorable conditions certificate is normally appropriate for a member discharged for misconduct.

Army Regulation 635-5 provides for the preparation of the DD Form 214 and states in effect, item 28, narrative reason for separation, will reflect “Misconduct,” when an individual is discharged for misconduct - commission of a serious offense, under the provisions of Army Regulation 635-200, paragraph 14-12c.

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 states that an enlisted soldier may not be referred for, or continue, disability processing when action has been started under any regulatory provision which authorizes as characterization of service of under other than honorable conditions.

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.

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 discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of his discharge is generous in view of the applicant’s overall record of military service. Because of his numerous acts of indiscipline, it does not appear that his general discharge was too severe. The Board notes that the applicant could have received a discharge under other than honorable conditions. Contrary to the applicant’s contention, a discharge for misconduct under current standards would not warrant an honorable discharge.

2. While the Board has taken cognizance of the applicant's current employment situation and his good post service conduct; none of these factors, either individually or in sum, warrants the relief requested.

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.

4. The VA 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, the applicant'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 him for VA benefits based on an evaluation by that agency.

5. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

6. Because of the nature of the applicant’s discharge proceedings, he could not have been referred for disability processing. Nevertheless, the applicant did not have a medically unfitting disability requiring physical disability processing. Therefore, there is no basis for physical disability retirement or separation. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

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 that 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

__RVO__ __JPI __ __RKS __ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063521
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020307
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.