MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 September 2003
         DOCKET NUMBER: AR2003084240

         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. Antoinette Farley		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichom		Chairperson
Mr. Melvin H. Meyer		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, a physical discharge separation.

APPLICANT STATES: As a service-connected disabled veteran, he was prejudicially discharged because of his inability to perform his duties as assigned. He states that for the record anyone can see the harsh reality of what he encountered. He claims that he suffered severe medical conditions, which were not accepted by his superiors nor the medical officials. He adds that the decision was left up to his superiors to find a remedy to his medical disabilities, without him appearing before a medical board. He lost his rank, his pay and other honors, which he earned before his disabilities began. He asks that a honest look be taken into his application to show the injustice done to him years ago, which still continue to plague his welfare and family.

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

He enlisted in the Regular Army on 13 November 1985. He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 64C (Motor Transport Operator). On 28 March 1986, he was transferred to Germany for duty, in his MOS.

On 19 October 1986, a medical examination found the applicant to be qualified for separation with a physical profile of 1.1.t3.1.1.1., and administrative action was deemed appropriate. The doctor also suggested that the applicant follow-up with the Veterans Administration for his knee injury as required. Evidence provided from medical record entries shows that the applicant was treated
for a knee injury and referred for surgery, which he refused in July 1986. On
21 October, a mental status evaluation, determined that the applicant's behavior was normal, fully alert, oriented and that he displayed an unremarkable mood. His thinking was clear, his thought content normal and his memory good. There was no significant mental illness. The applicant was mentally responsible. He was able to distinguish right from wrong and to adhere to the right. He had the mental capacity to understand and participate in separation proceedings.

On 27 October 1986, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his place of duty on 24 and 25 September 1986 and on 6 October 1986. His punishment included reduction to pay grade E-2, forfeiture of $167.00 pay and extra duty and restriction for 14 days, suspended for 6 months.

On 3 November 1986, the applicant accepted NJP for failing to go to his place of duty on 28 and 29 November 1986. His punishment included reduction to pay grade E-1, forfeiture of $149.00 pay and extra duty and restriction for 14 days, suspended for 6 months.

On 10 December 1986, the applicant accepted NJP for being disrespectful to noncommissioned officers and failure to obey lawful orders on 26, 29 and
30 November 1987. His punishment included forfeiture of $149.00 pay, extra duty and restriction for 14 days, suspended for 6 months.

On 19 December 1986, the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. The commander cited his repeated instances of failure to go to his appointed place of duty, disrespect to noncommissioned officers, failure to obey lawful orders and his complete disregard for authority and the basic standards of military conduct. The applicant consulted with legal counsel concerning the basis for the contemplated separation action and the rights available to him. He was afforded the opportunity to submit statements in his own behalf, but he declined to do so. He acknowledged that he understood that, as the result of issuance of a general discharge he could expect to encounter substantial prejudice in civilian life. He also acknowledged that he could make application to the Army Discharge Review Board or the Army Board of Correction of Military Records for upgrading; however, consideration by either board did not imply that his discharge will be upgraded.

On 13 January 1987, his intermediate commander agreed with the recommendation that he be given a general discharge certificate, under honorable conditions.

On 14 January 1987, the appropriate separation authority approved the recommendation for separation and waived further rehabilitative action. He also rejected the applicant’s transfer to the Individual Ready Reserve (IRR) to complete his service obligation and directed the issuance of a general discharge certificate.

On 6 February 1987, the applicant was separated in pay grade E-1, under
the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance, with an under honorable conditions discharge. He had completed 1 year, 2 months and 24 days of creditable active service.

Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel. Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.
Service of soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

There is no record that he ever submitted a request for review of his discharge by the Army Discharge Review Board within that board’s 15-year statute of limitation. However, on 13 November 1985, the applicant applied to the Army Board for Correction of Military Records (ABCMR) for correction, under the provisions of rule E(2) TAB 2-3, Army Regulation 601-210 and Paragraph 7-9, for advancement to pay grade E-3. On 23 December 1986, the Board directed that his records be corrected to show his grade at the time of enlistment as Private First Class (E-3), effective 13 November 1985.

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 discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

2. There is no evidence of record and the applicant has provided no evidence, which supports his contention that he was entitled to a medical separation. The applicant’s record shows that he was found medically fit for separation in
October 1986 after his mental and medical examination.

3. 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.

4. 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 MHM _KAH _ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084240
SUFFIX
RECON
DATE BOARDED	20030916
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	1987/02/06
DISCHARGE AUTHORITY	AR 635-200, ch 13
DISCHARGE REASON	UNSAT Performance
BOARD DECISION	DENY
REVIEW AUTHORITY	DIRECTOR
ISSUES 1.	A144.4900
2.
3.
4.
5.
6.