MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF
        

                  BOARD DATE: 25 September 2003
                  DOCKET NUMBER: AR2003088421

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Regan K. Smith		Member
Mr. Linda D. Simmons		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 his general, under honorable conditions discharge (GD) be changed to a medical discharge.

APPLICANT STATES: In effect, that in February 2002, while on route to an honors ceremony, he was involved in a weather related vehicle accident that resulted in his suffering an injury to his shoulder. He claims that he was treated at a civilian hospital immediately after the accident, and that once he returned to Fort Drum, New York, he received physical therapy from orthopedic doctors between March and July 2002, and this was the only attention he received for this injury by military medical personnel.

During this same time period, the applicant claims he was charged with fraternization and adultery and even though never proven, this resulted in his separation from military service. He claims that his unit commander pled for lesser charges that would allow for his retention on active duty based on his continued need for medical care for this injury. He states that a neurological examination done on him in July 2002 resulted in a determination that he suffered a complete tear in his rotary cuff. Once these results were known, his commander requested his retention for medical reasons in order to allow him to receive surgery for his injury. This request was denied, and it was made clear that a less than honorable discharge would be pursued in his case, which would prohibit further treatment for his injury through the Department of Veterans Affairs (VA).

The applicant claims that upon receiving his GD orders in August 2002, he was told to clear post within 48 hours, a process that normally takes two weeks. This resulted in his having no time to consult with the VA representative on post. He claims that he immediately applied for VA benefits and received expedient care from the VA because of the documentation he had from the Army concerning his injury. He ultimately had surgery for his condition nine months after the accident. The surgeon explained that he did what he could, but due to the severity of the tear and the length of time without proper care, his shoulder would never be what it was before. He claims that since the surgery, he has been seen many times and he continues to have chronic pain in his shoulder, sleep deprivation, and loss of most movement of his right arm.

EVIDENCE OF RECORD: The applicant's military records show

On 27 February 2002, the applicant was involved in a motor vehicle accident in a government vehicle while on route from Fort Drum to Syracuse New York. As a result of the accident, he sustained an injury to his shoulder.

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On 13 May 2002, upon completion of an informal investigation into alleged fraternization in the applicant’s unit that was conducted under the provisions of Army Regulation 15-6, an investigating officer (IO) recommended that
court-martial charges be preferred against the applicant.

A Physical Profile (DA Form 3349) on file confirms that the applicant was issued a temporary profile of 3 in the upper extremities on 30 May 2002. This form indicated that the applicant suffered from a right shoulder dislocation and it identified the activities in which the applicant could still participate, which included running at his own pace and distance. The expiration date of this profile was 30 June 2002. None of the medical treatment records on file in the applicant’s Official Military Personnel File (OMPF) give any indication that this condition medically disqualified him from further military service.

On 20 June 2002, a charge sheet (DD Form 458) was prepared preferring
court-martial charges against the applicant for violations of Article 90, 92, 107, and 134 of the Uniform Code of Military Justice (UCMJ).

On 24 July 2002, the applicant consulted with legal counsel, and after being advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under honorable conditions discharge, and of the rights available to him, he voluntarily requested discharge in lieu of court-martial. In his request, the applicant acknowledged guilt to at least one of the charged offenses or a related lesser included offense. He further stated that he did not desire further rehabilitation within the military. In a statement enclosed with his discharge request, the applicant requested that he be given a GD in order for him to receive treatment for his shoulder injury from the VA subsequent to his discharge.

On 15 August 2002, the separation authority approved the applicant’s discharge request and directed that he receive a GD. On 23 August 2002, the applicant was discharged accordingly.

The separation document issued to the applicant confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of
court-martial. This document also shows that at the time of his discharge, he held the rank of sergeant and he had completed a total of 5 years, 7 months, and 7 days of active military service. The applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated).

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Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth the policies, responsibilities, and procedures that apply in determining whether a soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Paragraph 1-5 states, in pertinent part, that a soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing. Paragraph 2-2b states, in pertinent part, 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.

Chapter 3 of Army Regulation 635-40 contains the policy and outlines the standards for determining unfitness because of physical disability. It states, in pertinent part, that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating. Paragraph 3-3b(1) states, in pertinent part, 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.

Paragraph 4-3 of the same regulation states, in pertinent part, that a member may not be referred for or continue disability processing when action has been started under any regulatory provision that authorizes a character of service of under other than honorable conditions.

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 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.

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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 notes the applicant’s contention that his GD should be changed to a medical discharge. However, if finds insufficient evidence to support this claim.

2. The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. The Board notes that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial. In doing so, he admitted guilt to an offense under the UCMJ that authorized a punitive discharge.

3. The medical treatment records on file confirm that the applicant suffered an injury to his right shoulder as a result of a vehicle accident in a government vehicle that he was involved in while on route to an honors ceremony. However, while this injury resulted in the assignment of a temporary profile, there is no evidence of record and the applicant has failed to provide independent evidence that shows that this condition rendered the applicant medically unfit to perform the duties of his grade and specialty, or that it medically disqualified him from further service at the time of his separation.

4. While it is clear that the VA provided the applicant medical treatment and benefits for this injury, this does not mean that the applicant’s condition was medically unfitting for further service at the time of his discharge. Further, by regulation, a member may not be referred for or continue disability processing when action has been started under any regulatory provision that authorizes a character of service of under other than honorable conditions.

5. Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It also noted that the characterization of service for this type of discharge is normally under other than honorable conditions, but the applicant was granted a GD, which allowed for him to receive treatment for his medical condition from the VA. The Board views this as an act of clemency on the part of the separation authority based on the applicant’s overall record of service, and it does not find further relief would be appropriate at this time.

6. 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

_JS__ __LDS___ __RKS DENY APPLICATION

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

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INDEX

CASE ID	AR2003088421
SUFFIX
RECON
DATE BOARDED	2003/09/DD
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	2002/08/23
DISCHARGE AUTHORITY	AR 635-200 C10
DISCHARGE REASON	In Lieu of Court-Martial
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 189	110.0000
2.
3.
4.
5.
6.