MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 2 May 2002
         DOCKET NUMBER: AR2002067523

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Walter T. Morrison		Member
Mr. Christopher J. Prosser		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 discharge be changed to a medical retirement or he be reinstated or his reentry (RE) code be changed to one that would allow him to reenlist.

APPLICANT STATES: That his records will show that he faithfully served in the Army until that one incident. When he went into the Army, he was told that it was OK to drink hard and work hard. But after years of drinking, and then returning from the Gulf War, he found himself hurt and lonely and with nowhere to turn but to drugs and depression. In the war they lost ten soldiers. He lost his best friend. He never had any counseling. All his trouble started within five months of his return from Iraq. His wife and kids left him and his mother died. The only relief he could get was with alcohol and he met this girl who gave him a drug. He took it but got scared and told his commander what he had done and asked for help. His command did not help him. They refused to let him go to rehab. He turned to a doctor and they finally let him go to rehab but they kept calling and telling his counselor that they wanted him back to discharge him. He constantly has pain in his leg and thigh and he cannot see or read out of his eye. He is convinced he has glaucoma because of an injury he received in 1975. He provides some service and Department of Veterans Affairs (VA) medical records and his VA rating decision as supporting evidence.

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

He initially enlisted in the Regular Army in October 1973. In January 1975, he was given a temporary profile for a multiple trauma with lacerations to the left side of his face and iritis, left eye. He was released from active duty in October 1976.

The applicant reenlisted in the Regular Army on 28 March 1978. In June 1981, he sustained a gunshot wound shattering his left thighbone. He was given a permanent profile of U3 and L3 on 15 January 1982 with assignment restrictions of no crawling, stooping, running, jumping, marching, or standing longer than 30 minutes and no assignment requiring handling of heavy materials including weapons, no overhead work, no pull-ups or pushups, and no lifting greater than 20 pounds. His activity limitations were anticipated to last for about the next 20 months. Temporary or permanent reclassification into an indoor administrative or clerical military occupational specialty (MOS) was recommended as he was incapable of performing in his current MOS of 94B (Food Service Specialist).

The applicant was promoted to Sergeant First Class, E-7 on 1 October 1987 in MOS 94B.

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The applicant’s Enlisted Evaluation Report for the period May 1987 – April 1988 shows he was given the maximum score of 125 while performing duties as an Assistant Dining Facility Noncommissioned Officer in Charge. Comments noted that he performed superbly during the rating period. He passed his physical fitness test (APFT) in March 1988.

The applicant was assigned to the 27^th Engineer Battalion, Fort Bragg, NC on or about 28 June 1988.

The applicant’s Noncommissioned Officer Evaluation Report (NCOER) for the period June 1988 – May 1989 rated him as “success” in all categories of NCO responsibilities and noted that he was a leader in physical fitness. He passed his APFT in April 1989.

The applicant’s NCOER for the period June 1989 – May 1990 rated him as “needs improvement” in all categories of NCO responsibilities. None of the negative comments mention a physical inability to perform his duties. He passed his APFT in April 1990. There is no evidence to show he appealed this NCOER.

The applicant’s Personnel Qualification Record, DA Form 2-1, shows he was in Saudi Arabia from 20 September 1990 – 28 March 1991.

The applicant’s NCOER for the period June 1990 – March 1991 rated him as “success” in all categories of NCO responsibilities. He passed his APFT in October 1990.

The applicant’s NCOER for the period April 1991 – March 1992 rated him as “success” in three categories and as “excellence” in two categories of NCO responsibilities and it was noted he maintained a very high degree of physical fitness. He passed his APFT in February 1992.

On 7 December 1992, the applicant departed absent without leave (AWOL). He returned to military control on 9 January 1993.

The applicant’s NCOER for the period April 1992 – March 1993 rated him as “needs improvement” in all categories of NCO responsibilities. Comments included “Marginally completed the Track III Drug and Alcohol rehabilitation program.” Physical fitness test entries are contradictory – it is noted that he passed the APFT in February 1993 but one comment is, “Constant absence prevented the unit from administering soldier the APFT.”

The court-martial charge sheet is not available. The 1996 Army Discharge Review Board (ADRB) packet shows the applicant was charged with disobeying orders from superior noncommissioned officers (NCOs), dereliction of duty; wrongful use of cocaine on two occasions (other documents show the use was between on or about 18 and 21 May 1992 and on or about 1 and 18 June 1992), and being AWOL. After consulting with legal counsel, he voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. By doing so, he admitted guilt to the offenses with which he was charged.

On 9 April 1993, the appropriate authority approved the applicant’s request and directed he receive a discharge under other than honorable conditions (UOTHC).

A separation physical is not available.

On 26 April 1993, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC. He was given a separation program designator code (SPD) of KFS (for the good of the service in lieu of court-martial) and an RE code of 3. He had completed a total of 17 years, 11 months, and 26 days of creditable active service and had 33 days of lost time.

On 1 September 1995, the VA granted the applicant a 30 percent disability rating (left proximal femoral fracture, 10 percent; scars of face and neck, 10 percent; and traumatic cataract of the left eye with stromal opacity of the cornea, 10 percent).

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. A discharge UOTHC is normally considered appropriate.

Army Regulation 600-85 prescribes policies needed to implement the Army Drug and Alcohol Prevention and Control Program (ADAPCP). In pertinent part, it states that the most desirable method of discovering alcohol or other drug abuse is voluntary (self) identification. The individual whose performance, social conduct, interpersonal relations, or health becomes impaired because of the abuse of alcohol or other drugs has the personal obligation to seek treatment and rehabilitation.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. The mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disabilities present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her grade and rank.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

The Separation Program Designator Code (SPD)/Reentry (RE) Code Cross-Reference Table in Army Regulation 635-5 stated, at the time, that when the SPD was KFS then RE code 3 would be given. The current standard is for RE code 4 to be given when the SPD is KFS.

Title 38, U. S. 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.

On 4 March 1996, the ADRB denied the applicant’s request for an upgraded discharge.

On 26 February 2001, the ADRB reconsidered the applicant’s request and determined that the characterization of service was inequitable based on his overall length and quality of service and his post service accomplishments. The ADRB upgraded his discharge to general under 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. 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. Considering the offenses for which the applicant, a senior NCO, was charged, it appears that proceeding with court-martial charges rather than an Article 15 was appropriate. The Board notes that not all his service prior to these incidents was outstanding. Although there appears to be no record of disciplinary actions taken against him, his NCOER for the period ending May 1990 (a 12-month rating period) indicates he had some problems prior to his deploying to the Gulf. If he believed these problems were the result of his drinking, he had a responsibility to himself to volunteer for enrollment in ADAPCP at that time.

3. The applicant’s NCOER for the period ending March 1993 indicates he was enrolled in and did complete, marginally, ADAPCP. It cannot be determined when he was enrolled; however, the Board notes that the applicant failed a urinalysis for cocaine use two months in a row. Given that record, it is understandable why his command would believe that enrollment in ADAPCP would not be successful.

4. It is regrettable that the applicant’s misconduct came at the end of his military career; however, considering his record of poor performance dating back to 1990 and the offenses for which he was charged, the Board determines that there is no Government error or matter of equity that would justify reinstating him in the Army.

5. There is no evidence of record to show the applicant was physically unable to perform his duties. On the contrary, except for two negative NCOERs which did not mention he was physically incapable of performing his duties, his NCOERs showed that he was fully capable of performing his duties in his primary MOS of 94B and that he was also physically fit otherwise.

6. The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may not be found to be unfitting by the Army and yet be rated by the VA as disabling.

7. Considering the reason for which the applicant was discharged, the given RE code of 3 was appropriate.

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

__fne___ __wtm___ __cjp___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002067523
SUFFIX
RECON
DATE BOARDED	20020502
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19930426
DISCHARGE AUTHORITY	AR 635-200, ch 10
DISCHARGE REASON	A70.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.	100.03
3.	110.03
4.
5.
6.