MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 21 AUGUST 2003
         DOCKET NUMBER: AR2003083381

         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. John N. Slone		Chairperson
Mr. Roger w. Able		Member
Ms. Regan W. 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, that he be reinstated on active duty in order to complete physical disability processing.

APPLICANT STATES: That he was improperly discharged on 30 October 2002. He was not allowed to process his records into the Veterans Affairs' system when out-processing. Doctor "C" improperly terminated his Medical Evaluation Board (MEB) without consulting him, a violation of his rights.

Orders were issued discharging him on two occasions, but were revoked because he was undergoing a MEB. The day after the last revocation, Doctor "C" contacted the PEBLO (Physical Evaluation Board Liaison Officer) and terminated his MEB. Orders were published and he was discharged without having the opportunity to process his records into the VA system.

The applicant provides a copy of his 30 October 2002 DD Form 214 (Certificate of Release or Discharge from Active Duty), the orders mentioned above, a copy of a 30 October 2002 memorandum from Doctor "C" requesting the MEB on the applicant be terminated, a copy of a 17 July 2002 letter to a Member of Congress concerning the applicant's pending separation from the Army, and a copy of a 5 December 2002 letter to this Board from the applicant.

In a 6 May 2003 letter to this Board, the applicant stated that his medical board was unethically terminated and he was physically escorted out the door in an 8-hour period on 30 October 2002. He stated that he takes exception to the allegation that he failed to make separation appointments, and provides information concerning his separation processing. He stated that the assessment that he was fit for duty was incorrect. He was denied thorough physical examinations to support a determination of fit for duty. His condition was acute. Doctor "C" had not evaluated his condition since initiation of the MEB. The Inspector General's office refused to assist him. He has since received a 40 percent disability rating from the VA. He states that the allegation by his command sergeant major that he "worked the system and stalled the separation process" was false. He had a back injury on 31 January 1999 and was on temporary profiles for over 3 years. His condition should have resulted in a permanent profile.

He was in a hostile work environment since his punishment under Article 15, UCMJ, in March 2000. He was an outstanding soldier, however the whole person concept was not applied to him because of prejudice. The administrative separation proceedings exonerated him, yet there was not an objective review of his case. The applicant provides a copy of his Inspector General Action Request, documents from the Inspector General's office concerning his case, medical documents concerning his back condition, a copy of a 12 March 2003 VA letter informing him of its decision on his claim for his service connected compensation, and a copy of the findings and recommendation of an administrative board.

EVIDENCE OF RECORD: Incorporated herein by reference are military records which were summarized in a memorandum, dated 28 March 2002, prepared to reflect the Board's decision on the applicant's request concerning his Article 15 and his NCOER for the period ending in July 2000 (AR2001061448).

A 31 January 1999 medical report shows that the applicant was treated for low back pain. He had sharp pain over his left side.

The applicant underwent an MRI of his lumbar spine on 21 February 1999. The radiologist's report indicated that the applicant had moderate diffuse posterior disc bulge with covering posterior osteophytes at L5-S1. There was a superimposed small left lateral disc herniation, which was impinging upon the left L5 nerve root lateral to the vertebral body and displacing the left S1 nerve root posteriorly in its lateral recess. There was mild to moderate right neural foraminal narrowing as well. He had a mild posterior disc bulge at L4-5 with mild right and moderate left neural foraminal narrowing.

The applicant underwent an MRI of his lumbar spine on 26 April 2000. The radiologist concluded that the applicant had degenerative disc disease with moderate midline disc protrusion at L5-S1, small midline disc protrusion at L4-5, and bilateral lateral recess stenoses at L4-5.

As indicated in the 28 March 2002 Board case, the applicant was informed on 20 April 2001 of a DA imposed bar to reenlistment under the QMP. At the time of the notification, the applicant had 16 years, 5 months, and 15 days of service. On 2 May 2001 the applicant indicated that he would submit an appeal.

On 11 May 2001 the applicant submitted his appeal. His appeal was denied on 28 December 2001.

On 3 July 2002 the PEBLO at the Army Medical Department Activity at Fort Hood informed the applicant's commanding officer that the applicant was undergoing physical disability processing.

In a 17 July 2002 letter to a Member of Congress (MC) in response to his inquiry concerning the applicant's separation under the QMP, the Deputy Adjutant General, Headquarters III Corps and Fort Hood, stated that the applicant was scheduled to separate on 2 July 2002 under the QMP; however, the Deputy Commander for Clinical Services at Darnall Army Community Hospital (DACH) determined that he did not meet medical retention standards, and was eligible for processing through the physical disability system. On 2 July 2002 he was referred for processing through the MEB by the brigade surgeon. The Deputy Adjutant General provided the MC information concerning the applicant's punishment for misconduct for the use of marijuana, stated that the applicant had been denied continued active service under the QMP, and that the applicant had ample time to appeal that decision; and that he was allowed adequate time to prepare for his separation from the Army. He stated that the applicant was not being unfairly discharged, but was being afforded every legal and medical recourse as he was being processed through the physical disability system.

Orders were published on 27 June 2002 assigning the applicant to the transition center at Fort Hood for transition processing and discharge on 2 July 2002. The orders were revoked on 2 July 2002. On 25 October 2002 the applicant's battalion command sergeant major requested that orders be published to be effective on 4 November 2002, stating that an official at the Enlisted Records and Evaluation Center stated that the applicant should be separated in accordance with the DA mandated QMP board results. Orders were published on 25 October 2002, again to assign the applicant to the transition center, with discharge on 4 November 2002. Those orders were revoked on 29 October 2002.

In a 30 October 2002 memorandum to a Mr. "H," the PEBLO, Doctor "C," the 1st Brigade surgeon of the 1st Cavalry Division, requested that the MEB action on the applicant be terminated, stating that his medical issues were stable and could be followed by the VA system once he was discharged. The Deputy Commander for Clinical Services approved his request. The PEBLO terminated his MEB on that same date.

Orders were published on 30 October 2002 reassigning the applicant to the transition point with a reporting date and discharge date of 30 October 2002. The applicant was discharged on 30 October 2002 under the provisions of Army Regulation 635-200, paragraph 19-12. He had 17 years, 11 months, and 25 days of service. He received $31,982.92 in separation pay.

In a 3 December 2002 letter to this Board, the applicant indicated that he was improperly discharged after the MEB that he was undergoing was improperly terminated. The action was taken to prevent him for reaching 18 years on active duty. He refers to the above-mentioned letter to the MC, and stated that he was not supported during the MEB processing, but that the MEB was terminated without his knowledge. He would like to be reinstated on active duty and continue to be processed under the physical disability system.

Notes (from an Inspector General's office), dated 14 November 2002, provide information concerning the applicant's discharge processing. Those notes indicated that the applicant was escorted through the clearing process because he had exceeded his timeline for clearing and discharge under the QMP process and that he failed to make his separation counseling appointments after being notified that his appeal had been denied. The individual providing that information opined that the applicant was trying to stall the clearing process until he had 18 years of service. The notes indicated that a VA physical was not required during out-processing, and the applicant could apply to the VA after his discharge. The notes also indicated that at the time the applicant was appealing his QMP he started seeing a doctor about his back problem. The notes indicated that the applicant worked the system to the point that he was being considered for a MEB; however, the MEB did not override his QMP and he was discharged. He was told that he could go through the QMP to get his physical evaluation and any medical help. He would have to submit a request to this Board regarding his physical condition.

A 30 January 2003 Inspector General (IG) case summary indicates that the applicant had contacted the 1st Cavalry Division IG on 28 October 2002 complaining that someone had illegally published orders discharging him, even though he was undergoing MEB processing. That summary indicated that this was the applicant's second complaint on this matter. In the first complaint, he was not in the MEB process, but his orders to discharge him were revoked for unknown reasons. The summary indicated that the applicant should have been retained until the medical process was completed. Conversations with the physician that initiated the MEB, however, indicated that doctor was going to terminate the MEB because he had determined that the applicant was fit for duty. The MEB was terminated and the applicant was discharged.

On 12 March 2003 the VA informed the applicant that he had been awarded a 20 percent service connected disability rating for his back condition, a 20 percent rating for his left shoulder condition, and a 10 percent rating for tinnitus; and that his combined rating was 40 percent.

Army Regulation 635-200, paragraph 19-12, provides for the involuntary discharge of soldiers under the QMP, and states that soldiers who choose not to appeal the QMP selection for denial of continued service, or whose appeal is denied, will be involuntarily discharged. Such discharge will occur 90 days after the soldier receives pre-separation counseling as required by law (10 USC 1142), which may be scheduled before a final determination of discharge has been made or as soon as possible after a final determination has been made.

10 USC 1142 states in effect, that preseparation counseling shall commence as soon as possible during the 12-month period preceding the anticipated separation date. In no event shall preseparation counseling commence later than 90 days before the date of discharge.

Army Regulation 635-40 provides instructions for retaining soldiers on active duty after scheduled nondisability discharge date, and states that a soldier whose normal scheduled date of nondisability separation occurs during the course of hospitalization or disability evaluation may, with his consent, be retained in the service until he has attained maximum hospital benefits and completion of disability evaluation if otherwise eligible for referral into the disability system. Enlisted soldiers on extended active duty may be retained on active duty according to the provisions of Army Regulation 635-200, chapter 1.

Army Regulation 635-200, paragraph 1-24, states in effect that a soldier may only be considered for retention past the set release date when continued health care is required, and or physical disability processing is required or has been initiated. Soldiers determined medically fit for retention or separation will not be retained past set release date. No soldier will be retained beyond his release date without written consent signed by the soldier. The medical facility commander will send requests for retention, endorsed by the soldier's unit commander, to the nearest General Court Martial Convening Authority (GCMCA). The request will include a medical recommendation. Retention requires approval by the GCMCA. Retention will not provide the soldier a means of completing 18 years of service and, thereby, qualifying for retention to 20 years of service and retirement eligibility.

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 has not provided any good reason to reinstate him on active duty in order to complete physical disability processing. The scant medical information available does not indicate that the applicant was medically unfit for retention, nor is there evidence that the physical disability processing was unjustly terminated. Competent medical authority determined that his medical condition was such that he could be discharged. He has provided no medical evidence to indicate otherwise.

2. While the Board notes that the applicant's MEB was abruptly terminated on 30 October 2002, and he was discharged that same date, it also notes that the applicant had ample time to complete separation processing since the denial of his QMP appeal in December 2001. Orders were initially published on 27 June 2002 with a discharge date of 2 July 2002, indicating that his preseparation processing was completed or nearing completion. Apparently, however, his referral into the physical disability evaluation system prevented his discharge on that date. His discharge was again ordered on 25 October 2002, the orders revoked, and he was finally discharged on 30 October 2002 on the date that his physically disability evaluation processing was terminated, and 10 months after the denial of his QMP appeal.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

4. 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.

5. 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

__JNS __ __RWA__ __RKS __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003083381
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030821
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.