MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:


                  BOARD DATE: 09 OCTOBER 2003
                  DOCKET NUMBER: AR2003087425

         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. Raymond V. O'Connor, Jr.		Chairperson
Mr. Robert J. Osborn II		Member
Ms. Eloise C. Prendergast		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, physical disability retirement or discharge.

APPLICANT STATES: That he should receive a medical discharge for service-connected ailments, and retroactive retirement benefits. He entered on active duty on 16 June 1975 in great physical and mental condition. Over a period of five years, his health deteriorated; however, this fact was not acknowledged until 6 September 2002. He encloses a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a copy of a letter from an attorney, and a copy of a rating decision from the Department of Veterans Affairs (VA).

COUNSEL CONTENDS: That a thorough review of the applicant's medical records clearly supports his request for a medical discharge. His present psychological disabilities are service related. There was a failure to diagnose and connect his present condition to matters which arose during his military service. The VA determined service connection for schizophrenic disorder. It would be unjust to deny the applicant benefits because of the lapse of time since his discharge. He requests that the three-year requirement be waived.

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

The applicant enlisted in the Army for three years on 16 June 1975, completed training as a field communications electronic equipment repairman at Fort Sill, Oklahoma, and in December 1975 was reassigned to Fort Polk, Louisiana, where he completed training as an infantryman. In February 1976 he was assigned to Fort Carson, Colorado as a mortar gunner. In October 1976 he went with his unit to Germany. He was discharged on 15 May 1978 and reenlisted in the Army for six years the following day.

On 30 April 1980 the applicant's commanding officer notified the applicant that he intended to initiate action to discharge him from the Army for unsuitability because of the applicant's apathy, defective attitudes and inability to expend effort constructively. The applicant consulted with counsel and stated that he had been advised of the basis for the contemplated action, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights. He waived consideration of his case by a board of officers. He indicated that he submitted statements in his own behalf; however, none are included in his record. The applicant stated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

On 11 June 1980 the applicant's commanding officer recommended to the separation authority that the applicant be eliminated from the Army for unsuitability. His justification is depicted in the attachments to that recommendation. Those attachments show:
•         The applicant was counseled on eight occasions in 1978 and 1979 for infractions such as missing formation (four times), failure to go to his place of duty and leaving his place of duty, poor duty performance, lack of motivation, improper uniform, and failure to obey a lawful order.

•         Statements indicating sleeping on guard duty (August 1977 and December 1979), and late for formation and improper uniform (May 1979).

•         A military police report showing that he assaulted a fellow soldier on 3 October 1979.

•         Two traffic violations – speeding and illegal parking. A letter of indebtedness.

•         Nonjudicial punishment under Article 15, UCMJ (Uniform Code of Military Justice) on four occasions for failure to go to his place of duty (twice), misplacing his rifle, sleeping on guard duty, failure to go to his place of duty (four times).

•         On 27 March 1980 he received a bar to reenlistment. The recommendation to bar him indicated that on 21 April 1977 he received a psychiatric evaluation due to suicidal and homicidal thoughts and possible transient dissociative experiences. He was found suitable for continued military service.

The applicant's commanding officer stated that the applicant received a physical examination on 2 June 1980 and a psychiatric examination on 3 June 1980, and that the applicant was cleared for discharge.

On 20 June 1980 the separation authority approved the recommendation and directed that the applicant be issued a General Discharge Certificate. He was not discharged, however, but released from active duty under the provisions of Army Regulation 635-200, paragraph 13-4c, for unsuitability. The character of his service was under honorable conditions.

On 12 May 1989 the Army Reserve Personnel Center discharged him from the Army Reserve with a general discharge.

An 11 October 2002 decision shows that the VA awarded the applicant service connection for schizophrenic disorder (claimed as anxiety and depression) with a 100 percent rating effective 20 March 2002. The VA noted in its decision that the applicant's service medical records showed that he was treated as an inpatient on two occasions for mental impairment.

Army Regulation 635-200, chapter 13, then in effect, provides for the elimination of enlisted personnel found to be unsuitable for further military service. A member is subject to separation for unsuitability for apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. Members who have not completed their military service obligation will be released from active duty and transferred to the Individual Ready Reserve. A member separated for unsuitability will receive a general or honorable discharge characterization of service as warranted by his military record.

Army Regulation 635-200, chapter 14, then in effect, provides for the elimination of enlisted personnel from the service for misconduct because of acts or patterns of misconduct, to include frequent incidents of discreditable nature with civil or military authorities. An under other than honorable discharge certificate is normally appropriate for a member who is discharged for acts or patterns of misconduct.

Title 38, United States Code, sections 1110 and 1131, 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.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501, then in effect, 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.

Army Regulation 635-40, then in effect, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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 separation proceedings were conducted in accordance with law and regulations applicable at the time. The Board notes that the applicant could have been eliminated from the Army for misconduct and received a discharge under other than honorable conditions. His separation for unsuitability with a characterization of service under honorable conditions is considered charitable considering the applicant's numerous acts of misconduct.

2. The medical evidence of record indicates that the applicant was medically fit for retention at the time of his separation. Neither the applicant nor counsel has submitted any probative medical evidence to the contrary. The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

3. The fact that the VA, in its discretion, has awarded the applicant a disability rating over 20 years after his separation is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes.

4. The award of VA compensation does not mandate disability retirement or separation from the Army. The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA is not required to determine fitness for duty at the time of separation. The Army must find a member physically unfit before he can be medically retired or separated.

5. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

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

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 that requirement.

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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

__RVO__ ___RJO _ __ECP __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003087425
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031009
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.