MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF
        

                  BOARD DATE: 16 September 2003
                  DOCKET NUMBER: AR2003088769

         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 Yvonne J. Foskey		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		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, that the narrative reason for his discharge be changed.

APPLICANT STATES: In effect, that he should have received a medical discharge based on a cold weather injury he received to his face. He claims that at the time of his discharge, his commander told him he was being medically discharged due to the Army’s neglect. He also states that when he was being processed out at Fort Dix, New Jersey, he was told that he was receiving a medical discharge due to his cold weather injury and that he should report to the Department of Veterans Affairs once he got home. In support of his application, he provides a Department of Veterans Affairs (VA) disability rating decision that grants him a 30% disability rating for a service connected frostbite injury.

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

On 13 November 1978, he enlisted in the Regular Army for 3 years. He successfully completed basic training at Fort Jackson, South Carolina. He attended advanced individual training (AIT) at Fort Dix, New Jersey to train
in military occupation specialty (MOS) 64C (Motor Transport Operator).

The applicant’s Personnel Qualification Record (DA Form 2-1) shows that the highest rank he attained while serving on active duty was specialist/E-4 (SPC). There are no acts of valor, significant achievement or service warranting special recognition during his active duty tenure.

The record does reveal an extensive disciplinary history that includes the applicant’s acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), which resulted in reduction in grade to private first class/E-3 (PFC/E-3).

The applicant was referred to the Army Drug and Alcohol Prevention and Control Program (ADAPCP) by his unit commander and he was enrolled in that program on 26 August 1980.

On 7 November 1980, the applicant’s unit commander, in consultation with the ADAPCP Clinical Director, declared the applicant an ADAPCP rehabilitation failure.

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On 24 December 1980, the applicant was notified by his unit commander that separation action was being initiated against him under the provisions of chapter 9, Army Regulation 635-200, by reason of alcohol abuse-rehabilitation failure, and that he was recommending the applicant receive an honorable discharge (HD).

The applicant acknowledged receipt of the separation action notification and indicated that he understood that military legal counsel for consultation would be available to assist him upon his request. He completed a statement in which he indicated that he did not want military counsel to be appointed to assist him and that he would not be submitting a statement in his own behalf.

On 7 January 1981, he applicant underwent a separation physical examination. The Report of Medical Examination (SF 88) prepared to document this examination confirms the applicant was medically cleared for separation by competent medical authority, and it contains no indication that the applicant suffered from any medical condition that disqualified him from further service or that would have warranted disability processing for a medical discharge. His separation was approved, and he was discharged accordingly.

The DD Form 214 issued to the applicant on the date of his separation,
7 January 1981, shows that he received an HD, under the provisions of chapter 9, Army Regulation 635-200, by reason of alcohol or other drug abuse. It also shows that at the time of his separation, he held the rank of PFC/E-3 and he had completed a total of 1 year, 7 months, and 29 days of creditable active duty service.

The medical treatment records on file do indicate the applicant suffered a cold weather injury and received a P3 profile as a result. However, none of these treatment records indicate this condition medically disqualified him from further service.

The applicant provides documents that confirm the VA granted him a 30% disability rating due to a service connected frostbite condition.

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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.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse. A member who has been referred to ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.

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 he should have been medically discharged based on his cold weather injury. However, it finds insufficient evidence to support this claim.

2. The evidence of record confirms that although the applicant did suffer a cold weather injury, medical officials never found this condition to be medically disqualifying for further service. Although the applicant was subsequently granted a VA disability rating for his service connected frostbite injury, because the VA grants disability under its own policies and procedures and unfitness for further military duty is not a criteria, 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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3. The evidence of record also includes a separation packet that contains a statement from the applicant in which he admits to understanding the basis for his discharge and in which he declines military counsel and elects not to submit a statement in his own behalf. In the opinion of the Board, this clearly shows that the applicant was aware of the basis for his discharge and did not contest it at the time.

4. Lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process. Therefore, the Board finds no evidentiary basis for changing the narrative reason of the applicant’s discharge at this time.

5. 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.

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

__FE__ ___KH__ ___MM_ _ DENY APPLICATION

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

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INDEX

CASE ID	AR
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
DISCHARGE AUTHORITY	AR .
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.