MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 August 2002
         DOCKET NUMBER: AR2002069570


         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:

Ms. Irene N. Wheelwright		Chairperson
Mr. Thomas Lanyi		Member
Mr. Arthur A. Omartian		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 discharge characterized as under other than honorable conditions (UOTHC) be changed to show that he was separated by reason of physical disability.

APPLICANT STATES: That in 1985, he contacted an Army recruiter about enlisting in the US Army Reserve (USAR). He informed the recruiter that he was due to start college in July 1985 and that he had injured his shoulder the previous year. Later that month, he was given a complete physical and was deemed physically fit by the medical staff. He began basic training in February 1985 at Fort Sill, Oklahoma and a few weeks later aggravated his previous injured shoulder while training. He was eventually deemed "medically disabled" by the medical staff. In May 1985, a medical discharge was initiated and while waiting for his final discharge, he went AWOL in June 1985. He was attempting to enroll in college while AWOL, which was due to start in July, but was unable to do so without his Army Reserve tuition funds. He returned to Fort Sill after 60-90 days of AWOL. Upon his return, a military lawyer informed him that he was ineligible for discharge by reason of physical disability. He was advised to accept an UOTHC discharge and was separated on 24 October 1985.
In January 2002, it was brought to his attention by the Veterans Administration (VA) that he was eligible for discharge by reason of physical disability with back pay and benefits under Title 38, of the Code of Federal Regulation (CFR), chapter 3, paragraph 3.12(c). He did not fall under any of the six conditions listed in paragraph 3.12(c). Furthermore, Title 38, CFR, section 1131, which pertains to basic entitlement, states that, "for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty during other than a period of war, the US will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs." He also met the minimum active duty service requirements under paragraph 3.12a(d)(2), which states that "a person who is discharged or released from active duty for a disability adjudged service connected, or who at time of discharge had such a service connected disability shown by official service records, which in medical judgment would have justified a discharge for disability."

He believes that had military counsel provided him with the proper legal advice, he would have been discharged by reason of physical disability with benefits. He is requesting that all medical benefits due to him be restored. In support of his application, he submits a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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

The applicant's records contain a copy of his entrance examination, dated 15 March 1985, which was prepared prior to his entrance on active duty, which shows that he was qualified for enlistment with a 111121 physical profile.
He enlisted in the US Army Reserve (USAR) on 22 March 1985, as a cannon crewman. He was ordered to initial active duty for training (IADT) on 29 March 1985.

The applicant's records contain a copy of DA Form 4707 (Entrance Physical Standards Board (EPSBD) Proceedings), dated 4 June 1985. The EPSBD stated that in May 1984 the applicant injured his right acromio-clavicular (the outward extension of the spine of the scapula, forming the point of the shoulder/collar bone) A-C joint playing hockey. He was diagnosed as having traumatic arthritis in the right A-C joint. The EPSBD recommended that the applicant appear before a Medical Board for consideration of separation. The applicant did not meet medical fitness standards for enlistment or induction under the provisions of Army Regulation 40-501, chapter 2, paragraph 11a(4). The EPSBD also indicated that the applicant's condition existed prior to service (EPTS), was service aggravated, and that he did not meet retention standards under the provisions of Army Regulation 40-501, chapter 3. The EPSBD issued the applicant a permanent physical profile of 131111. The findings of the EPSBD were approved by the medical approving authority on 6 June 1985, and were forwarded to competent medical authorities.
While waiting to complete his discharge proceeding, the applicant went AWOL.
Charges were preferred against the applicant on 25 September 1985, for being AWOL from 9 June to 23 September 1985 (106 days).
On 26 September 1985, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10. In doing so, he acknowledged guilt of the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if a discharge under other than honorable conditions were issued. He also elected not to submit a statement in his own behalf and indicated that he did not desire a physical evaluation prior to separation.
On 7 October 1985, the separation authority approved the applicant's request for discharge and directed that he be furnished an Under Other Than Honorable Conditions Discharge. The applicant was discharged on 24 October 1985. He had a total of 3 months and 11 days of creditable service and had 106 days of lost time due to AWOL.

There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

Army Regulation 40-501 governs medical fitness standards for induction, enlistment, appointment, retention, separation, retirement, officer procurement programs, and related policies and procedures. Paragraph 2-11 pertains to miscellaneous causes for rejection for appointment, enlistment, and induction. It states, in pertinent part, that traumatic arthritis of a major joint of more than minimal degree is a cause for rejection for enlistment.

Chapter 3 of the same regulation provides standards for medical retention. Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.

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.

Army Regulation 635-200 sets forth the basic authority for 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. A discharge under other than honorable conditions is normally considered appropriate.
Title 38, part 1, chapter 3, paragraph 3.12 pertains to character of discharge. Subparagraph 3.12c states that benefits are not payable where the former service member was discharged or released under one of the following conditions: (1) As a conscientious objector who refused to perform military duty, wear the uniform, or comply with lawful order of competent military authorities; (2) By reason of the sentence of a general court-martial; (3) Resignation by an


officer for the good of the service; (4) as a deserter; (5) as an alien during a period of hostilities, where it is affirmatively shown that former service member requested his or her release; and (6) By reason of a discharge UOTHC issued as a result of AWOL for a continuous period of at least 180 days. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence.
Title 38 of the CFR, part I, chapter 11, subchapter IV, section 1131, pertains to basic entitlement. It states that for a disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the US will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was aggravated, compensation as provide in this subchapter, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs.
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 evidence of record shows that the applicant injured his right shoulder prior to enlistment and was deemed physically fit by medical staff and was qualified for enlistment with a 111121 physical profile.

2. The Board notes that the applicant later aggravated his previous injury during training and later appeared before an EPSBD. The EPSBD diagnosed the applicant as having traumatic arthritis in the right A-C joint. The EPSBD recommended that the applicant appear before an MEB for consideration of separation. The EPSBD stated that the applicant did not meet medical fitness standards for enlistment, induction, or retention.

3. The applicant was issued a permanent profile of 131111 and the medical approving authority approved the findings of the EPSBD on 6 June 1985. The proceedings were forwarded to competent medical authorities; however, the applicant, while waiting to complete his final discharge proceedings, went AWOL.

4. The applicant remained AWOL for 106 days and upon his return requested voluntary discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial.

5. The type of discharge directed and reasons for that separation were appropriate considering all of the facts of the case.


6. The Board notes the applicant's contentions pertaining to the references in Title 38, CFR. However, once the applicant went AWOL and returned, he was ineligible for further processing for physical disability in accordance with Army Regulation 635-40, chapter 4 and did not meet the criteria in Title 38, CFR.

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 this 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

__iw___ ___tl___ __ao____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069570
SUFFIX
RECON
DATE BOARDED	20020827
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	19851024
DISCHARGE AUTHORITY	AR 635-200, C, 10
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 177
2.
3.
4.
5.
6.