MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 April 2003
         DOCKET NUMBER: AR2002080000

         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Harry B. Oberg		Member
Mr. Ronald J. Weaver		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 upgraded to honorable. He also requests that his narrative reason for separation be changed to "Convenience of the Government" and that a corresponding separation code be assigned. He further requests that his reentry (RE) code be changed to RE-1.

APPLICANT STATES: In effect, that he believes his discharge should be upgraded to honorable because he had medical and physical problems that impaired his ability to serve. He contends that he was diagnosed with a medical condition called varicocele (a varicose condition of the veins of the spermatic cord) which he was told might require surgery. He further states that he was placed on strong medication and was told that he should receive a medical or an administrative discharge. He also contends that he was severely beaten by at least four soldiers in Germany. He goes on to state that he tried to apply for a medical discharge or a transfer; however, his requests were denied. The applicant claims that the punishment he received was unfair and harsh by both today's and yesterday's standards. He also indicates that he has been a good citizen both before and after his discharge. In support of his application, he submits an undated letter of explanation; a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); copies of medical records, service medical records and service personnel records.

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

The applicant enlisted on 5 December 1978 for a period of 4 years. He successfully completed basic combat training and advanced individual training and was transferred to Germany for duty as a medical laboratory specialist.

Between 2 October 1979 and 23 June 1980, the applicant was counseled on numerous occasions for various infractions which included failure to report to his appointed place of duty and failure to perform his duties.

On 22 April 1980, the applicant was issued a temporary 3 physical profile under physical capacity or stamina for varicocele. He was found to be medically qualified for duty with limitations.

On 17 June 1980, nonjudicial punishment was imposed against the applicant for behaving with disrespect toward a superior commissioned officer. His punishment consisted of a forfeiture of pay (suspended) and 7 days of extra duty.

On 30 June 1980, nonjudicial punishment was imposed against the applicant for failure to go at the time prescribed to his appointed place of duty. His punishment consisted of a reduction to E-2 and 14 days of extra duty.

On 30 June 1980, the suspended portion of the punishment imposed on 17 June 1980 was vacated.
On 25 July 1980, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, paragraph 5-31, under the Expeditious Discharge Program (EDP) for failure to maintain acceptable standards for retention. The unit commander recommended separation with a general discharge and cited the applicant's socially unacceptable behavior, numerous counseling statements that indicate a lack of motivation and a poor attitude towards the Army and his two Article 15's within a short period of time, both for acts of irresponsibility and immaturity.

The applicant acknowledged notification of his pending separation, voluntarily consented to this discharge and elected not to make a statement on his own behalf on 25 July 1980.

On 7 August 1980, the applicant was issued a temporary 3 physical profile under physical capacity or stamina for varicocele. He was found to be medically qualified for duty with limitations.

On 12 August 1980, the applicant waived consideration of his case by a board of officers, waived a personal appearance, waived representation by counsel and elected not to make a statement on his own behalf.

The applicant's Medical Examination for Separation/Retirement Statement of Option, dated 13 August 1980, states in pertinent part, "I understand that I am not required to undergo a medical examination for separation (or retirement) from active duty. If I elect not to undergo a separation examination, I also understand that my medical records will be reviewed by a physician at the appropriate medical treatment facility; and if the review indicates that an examination should be accomplished, I will be scheduled for examination based on the results of the review." On 13 August 1980, the applicant did not desire a separation medical examination.

On 13 August 1980, competent medical authority reviewed the applicant's medical records and determined that a medical examination for separation was not required.

On 18 August 1980, the separation authority approved the recommendation for separation and directed that the applicant be furnished a general discharge.

Accordingly, the applicant was separated on 21 August 1980 with a general discharge under the provisions of Army Regulation 635-200, paragraph 5-31, under the EDP for failure to maintain acceptable standards for retention. He had served 1 year, 8 months and 17 days of total active service.

Item 26 (Separation Code) on the applicant's DD Form 214 shows the entry, "JGH." Army Regulation 635-5-1 (Separation Program Designator Codes), in effect at the time of the applicant's separation on 21 August 1980, states the reason for discharge based on separation code "JGH" is "Expeditious Discharge Program (EDP) (failure to maintain acceptable standards for retention.)" and the regulatory authority is paragraph 5-31, Army Regulation 635-200 (Enlisted Personnel).

Item 28 (Narrative Reason for Separation) on the applicant's DD Form 214 shows the entry, "EXPEDITIOUS DISCHARGE PROGRAM (EDP) FAILURE TO MAINTAIN ACCEPTABLE STANDARDS FOR RETENTION."

Item 27 (Reenlistment Code) on the applicant's DD Form 214 shows the entry, "3."

There is no evidence in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

In support of his claim to upgrade his discharge to honorable, the applicant provided medical records for treatment of varicocele. He also provided a medical record for treatment of multiple injuries sustained from a fight in Germany.

Army Regulation 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel. Paragraph 5-31 of the regulation provided, in pertinent part, that members who have demonstrated that they cannot or will not meet acceptable standards required of enlisted personnel in the Army because of a poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the Expeditious Discharge Program. Individuals discharged under the provisions of this paragraph may be awarded an honorable or general discharge.

Army Regulation 635-200, paragraph 3-7, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual.

Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty. The individual should receive assignments commensurate with his or her functional capacity. Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited. The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

To make a profile serial more informative, two modifiers are used: "P" (permanent) and "T" (temporary). The "T" modifier indicates that the condition necessitating a numerical designator "3" or "4" is considered temporary, the correction or treatment of the condition is medically advisable, and correction will usually result in a higher physical capacity. In no case will individuals in military status carry a "T" modifier for more than 12 months without positive action being taken either to correct the defect or to effect other appropriate disposition.

Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.

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 processing into the Regular Army and the USAR. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes.

Paragraph 3-27 of Army Regulation 601-210 provides that RE codes may be changed only if they are determined to be administratively incorrect.

RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

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 considered the applicant's contention that his discharge should be upgraded to honorable because he had medical and physical problems that impaired his ability to serve.

2. The Board noted that the applicant was issued a temporary 3 physical profile under physical capacity or stamina for varicocele on 22 April 1980 and on
7 August 1980. The Board also noted that the applicant was found to be medically qualified for duty with limitations on both occasions. In addition, the "T" modifier indicates that the condition necessitating a numerical designator "3" is considered temporary.

3. The Board reviewed the medical record which shows the applicant was treated for multiple injuries sustained from a fight in Germany.

4. However, service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty. At the time of the separation physical examination, competent medical authority reviewed the applicant's medical records and determined that a medical examination for separation was not required. On 13 August 1980, the applicant did not desire a separation medical examination. Accordingly, the applicant was separated from active duty under the EDP for failure to maintain acceptable standards for retention, not as the result of a medical condition.

5. The evidence of record does not support the applicant's contention that the punishment he received was unfair and harsh.

6. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

7. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

8. The applicant's contention that he has been a good citizen before and after his discharge, was also noted by the Board. However, good citizenship alone is not a basis for upgrading a discharge.

9. The Board reviewed the applicant's record of service which included two nonjudicial punishments and numerous adverse counseling statements and determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.


10. Evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 5-31, under the EDP for failure to maintain acceptable standards for retention.

11. The Board considered the applicant's request that his narrative reason for separation be changed to "Convenience of the Government" and that a corresponding separation code be assigned. However, the governing regulation in effect at the time states that the reason for discharge based on separation code "JGH" is "Expeditious Discharge Program (EDP) (failure to maintain acceptable standards for retention)" and the regulatory authority is paragraph
5-31, Army Regulation 635-200 (Enlisted Personnel). Therefore, there is no basis for granting the applicant's requests.

12. The RE code used in the applicant’s case is correct and was applied in accordance with the applicable regulations.

13. The applicant has failed to show through the evidence submitted or the evidence of record sufficient justification for upgrading his RE code.

14. 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.

15. 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

WTM____ HBO____ RJW____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002080000
SUFFIX
RECON
DATE BOARDED	20030417
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19800821
DISCHARGE AUTHORITY	AR 635-200 Chapter 5
DISCHARGE REASON	Expeditious Discharge Program - Failure to maintain acceptable standards for retention.
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.	100.0300
3.
4.
5.
6.