MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 05 JUNE 2003
         DOCKET NUMBER: AR2003083928

         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. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern III		Member
Ms. Karen A. Heinz		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, disability separation or retirement.

APPLICANT STATES: He wrongly received a general discharge when he should have received proper medical treatment and/or a medical discharge. He states that he is still disabled from the accident he had while in the military and submits a copy of a document indicating treatment by the Department of Veterans Affairs. He states that he only recently became aware that he could apply for a change in his discharge when he received a copy of letter that was intended to be given to him at the time of the discharge. He contends that the letter is “ample proof that [he] was unfairly discharged.”

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

He entered active duty on 28 August 1979 at the age of 20, with 12 years of formal education, and aptitude scores all over 100, including a GT (general technical) score of 113. On the applicant’s enlistment physical he indicated that his health was “good.”

In March 1980, following successful completion of basic and advanced individual training, the applicant was assigned to Fort Hood, Texas in accordance with his enlistment contract.

In July 1980 his unit commander denied the applicant’s promotion to pay grade E-3 noting that his duty performance did not warrant the promotion.

In October 1980 the applicant was counseled regarding his job performance. The counseling statement noted that while the applicant performed his duties “very well,” he “requires supervision on hands on training.” On 4 November 1980 he was counseled for failing to go to his place of duty. In February 1981 he was counseled twice. One statement indicated that the applicant could be a good soldier with more experience and the second statement noted that the applicant was not prepared for an inspection of his personal equipment and that his appearance was not that expected of a soldier.

The applicant’s records indicate that on 10 February 1981 his unit commander began the process of collecting appropriate documents in order to initiate an administrative separation action against the applicant.

On 13 March 1981 the applicant sustained small cuts to his right hand from metal fragments (bullet fragments) imbedded in his hand as a result of a back blast injury. The wound was cleaned and bandaged. He was placed on quarters for 48 hours.



On 27 March 1981 the applicant’s unit commander notified the applicant of his intention to administratively separate him (the applicant) from active duty under the provisions of Army Regulation 635-200, Chapter 5 (Expeditious Discharge Program). The commander cited the applicant’s failure to demonstrate promotion potential, inability to accept instructions and directions, substandard performance, lack of motivation, and lack of self-discipline, as the basis for his recommendation. The unit commander recommended that the applicant be discharged under honorable conditions and that he be issued a general discharge certificate. The applicant acknowledged receipt of the proposed separation, consulted with counsel, and voluntarily consented to the separation. He did not provide any statements in his own behalf. In his acknowledgement statement the applicant also indicated that he understood that he could decline to voluntarily accept the discharge, but that he if he declined he may be subject to separation under other provisions of the law or regulation if his subsequent conduct so warranted.

Although the applicant’s file does not contain a separation physical examination, the separation action does note that the applicant “received a separation physical examination or signed a waiver.”

The commander’s recommendation was approved and on 22 April 1981 the applicant was discharged under honorable conditions in pay grade E-2. He had 1 year, 7 months, and 25 days of active Federal service.

The letter, which the applicant contends supports his contention that he was improperly discharged, is dated 22 April 1981. Although the applicant states that he just recently received the letter, his record does contain a copy of the letter. The letter informs the applicant about the existence of the Army Discharge Review Board and his entitlement to submit an application to that board within 15 years of his discharge in order to have the “type and nature of the discharge certificate” reviewed. The letter makes no reference to the legality or appropriateness of the applicant’s April 1981 discharge. The letter is routinely provided to individuals administratively separated from the military.

In the fall of 2002 the applicant was seen by medical personnel who noted the applicant had “retained bullet fragments 1^st and 2^nd fingers” in his right hand. The document makes no reference to any disability compensation. Also included with the applicant’s application to the Board was a reminder that the applicant had an appointment at the Fort Smith Community Based Outpatient Clinic in Fort Smith, Arkansas on 17 January 2003. However, the notification document does not specify the basis for the appointment. The applicant also submitted a copy of a prescription for medication that he was to take twice a day “as needed for severe pain” which was filled in October 2002.


Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel. Chapter 5, as then in effect, provided, in pertinent part, for the Expeditious Discharge Program (EDP). This program provided that an individual who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that they could not or would not meet acceptable standards could be separated. Such personnel were issued a general or honorable discharge, as appropriate,

Army Regulation 40-501, paragraph 3-3b(1), as amended, 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.

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. The VA, however, 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, an individual'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 the individual for VA benefits based on an evaluation by that agency. Furthermore, unlike the Army the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

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. Although the applicant did sustain an injury to his hand while in the military, there is no evidence that the hand injury contributed to the conduct which served as the basis for his administrative separation. The Board notes that the applicant was not recommended for promotion, was counseled on several occasions, and that his commander began the process of administrative separation prior to the applicant’s hand injury.

2. The fact that the applicant continues to have a problem with his hand, or is currently receiving medical treatment, is not evidence that he was medically unfit for military duty in 1981, or that his administrative separation was erroneous or unjust.

3. The applicant’s contention that the April 1981 letter advising him of the existence of the Army Discharge Review Board was evidence that his discharge was unjust is without foundation. The Board notes that the letter merely advises the applicant of the existence of the Board and in no way indicates, or suggests, that his discharge was erroneous or unjust, or that application to that board would guarantee a change in the character or reason of his discharge.

4. The applicant voluntarily consented to the administrative separation action. There is no evidence, and the applicant has not provided any, that the discharge was inappropriate or that his rights were violated in any way.

5. There is no evidence that the applicant had a disability which warranted separation via the Army’s disability process. In the absence of such evidence there is no basis for to correct his records to show that he was discharged or retired by reason of disability.

6. 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.

7. 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

___AAO _ __TBR__ __KAH __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003083928
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030605
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.