RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 NOVEMBER 2004
      DOCKET NUMBER:  AR2004104145


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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. James Hise                    |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Hubert Fry                    |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his previous request to have
his 1987 discharge for unsatisfactory performance changed to show he was
discharged for medical reasons.

2.  The applicant states, in effect, that his entire record was not
properly reviewed and that had it been properly reviewed it would have been
clear that he, in effect, was serving honorably prior to the time his
injury was “made worse or aggravated by military service.”

3.  He states that on 24 September 1986 (the applicant incorrectly
indicated 1987) a physician recommended two options.  The first option was
for a determination by a medical board and the second option was for a
discharge.  He states that his superiors took the “latter approach” which
he contends showed the “errors and injustice of records.”  He states that
on 21 October 1986 (which he again incorrectly indicated as 1987) another
physician stated that he “does need to be considered for a medical board”
which he states was never convened because his superiors “unjustifiably
compiled records to show [his] character defects and not [his] medical
disability, at the time.”

4.  He argues that his records show a different character prior to his
injury.

5.  The applicant provides copies of his service medical records to support
his request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003084240, on 16 September 2003.  The applicant’s medical records were
not previously available to the Board and as such require review.

2.  The applicant entered active duty on 13 November 1985 in pay grade E-1.
 In February 1986, while still undergoing his initial entry training, he
was advanced to pay grade E-3, retroactive to the date of his enlistment,
after providing evidence that he had accumulated more than 30 hours of
college credit prior to his enlistment.

3.  Army Regulation 601-210, in effect at the time, provided for enlistment
in pay grade E-3 for individuals with 30 to 59 semester hours from an
accredited college program.

4.  The applicant indicated on his enlistment physical examination that his
overall health was good, but that he had sprained his right knee at age 17.
 The examining physician found him medically qualified for enlistment.

5.  In March 1986, after completion of basic and advanced individual
training, the applicant was assigned to his first permanent duty station in
Germany.  He was assigned duties in his primary specialty (64C) as a
vehicle driver.

6.  Almost immediately, according to information contained in the service
medical records the applicant provided to the Board, he began seeking
medical treatment for knee pain.  While he initially sought treatment for
left knee pain, by May 1986 he was complaining of pain in his right knee,
and ultimately complained of pain in both knees.  During the initial
treatment of his knee pain the applicant did not cite any specific event
which he identified as an “injury” which caused the pain, but rather, noted
that he had had trouble since high school.  In July 1986 he did remark
about a “recent re-injury” but did not specify what that injury was.  He
also noted that he had pain with running.

7.  At about the same time the applicant began seeking medical treatment
for his knee pain, he also began receiving written counseling statements
about his inability to stay at his appointed place of duty, missing
scheduled formations, and general poor attitude.  Between June 1986 and
November 1986 he was counseled on at least 19 different occasions.

8.  The applicant saw medical officials approximately 25 times between
April 1986 and November 1986.

9.  On 23 September 1986 a medical treatment official noted that “we have
nothing to offer this pt [patient] other then arthroscopic surgery which he
refuses.” The physician indicated that the applicant “seems to have an
adjustment problem and wishes to leave the military.”

10.  On 24 September 1986 the Deputy Commander for Clinical Services noted
that he had talked to the applicant and noted that:

      we appear to have two options;


      a. MEB/PEB –state pt refuses surgery.
      b. Recommend “Chapter Discharge” – requires coordination with his
      company commander to see if sufficient justification exists for this
      to be done.


11.  On 17 October 1986 the applicant underwent a physical examination.
The purpose of the examination was recorded as “Chapter 5.”

12.  “Chapter 5” is one of several chapters in Army Regulation 635-200
which established the policies and procedures for the separation of
enlisted soldiers.  Chapter 5 specifically applied to administrative
separation for the convenience of the Government.  Within Chapter 5,
paragraph 5-11 provided for separation of personnel who did not meet
procurement medical fitness standards and paragraph 5-13 provided for the
separation of soldiers because of personality disorders.

13.  On 21 October 1986 the applicant underwent a mental status evaluation.
 The evaluating physician, the Division psychiatrist, noted that the
applicant did not have a psychiatric disorder that would warrant
disposition through medical channels, and that he did not meet the criteria
for discharge under Army Regulation 635-200, paragraph 5-13 (personality
disorders).  He did state that the applicant “does need to be considered
for a medical board” although he did clear him for “any administrative
action deemed appropriate by command.”

14.  It was not until after the applicant had undergone his medical and
mental evaluations that he began receiving non-judicial punishments (NJP)
under Article 15 of the Uniform Code of Military Justice.  He was punished
initially on
27 October 1986, again on 3 November 1986, and again on 10 December 1986.
By the time of his third NJP action he had been reduced to pay grade E-1.

15.  It was after receipt of the applicant’s third NJP action that his
commander initiated action to administratively separate him for
unsatisfactory performance under the provisions of Army Regulation 635-200,
Chapter 13.

16.  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.

17.  Army Regulation 635-40 states that disability compensation is not an
entitlement acquired by reason of service-incurred illness or injury;
rather, it is provided to soldiers whose service is interrupted and they
can no longer continue to reasonably perform because of a physical
disability incurred or aggravated in service.  During the period in
question, it stated that when a solider is being processed for separation
or retirement for reasons other than physical disability, continued
performance of assigned duty commensurate with his or her rank or grade
until the soldier is scheduled for separation or retirement, creates a
presumption that the soldier is fit.  The presumption of fitness may be
overcome if the evidence establishes that the soldier was, in fact,
physically unable to perform adequately the duties of his or her office,
grade, rank or rating for a period of time because of disability.  There
must be a causative relationship between the less than adequate duty
performance and the unfitting medical condition or conditions.  The
presumption of fitness may also be overcome by an acute, grave illness or
injury or other significant deterioration of the soldier’s physical
condition occurring immediately prior to, or coincident with processing for
separation or retirement for reasons other than physical disability and
which rendered the soldier unfit for further duty.

18.  Army Regulation 635-200, chapter 13, provides for the administrative
separation of soldiers who will not develop sufficiently to participate
satisfactorily in further training and/or it is likely that the
circumstances forming the basis for initiation of separation proceedings
will continue or recur and the ability of the soldier to perform duties
effectively in the future, including potential for advancement or
leadership is unlikely.  Only soldiers who meet retention medical standards
may be processed under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The information available to the Board indicates that the applicant did
not have any disciplinary problems while he was in a structured training
environment, but once he was assigned to his first permanent duty
assignment he began to miss work, displayed a poor attitude, and was
punished three times under Article 15 of the Uniform Code of Military
Justice.  One could make the argument that while the applicant was able to
perform successfully in a training environment he was unable to do so in
the less structured environment of a duty assignment.

2.  While his service medical records did indicate that he continually
sought treatment for his painful knees, and that at least two physicians
suggested that a medical board may be appropriate, he has not shown that
his knee condition in anyway contributed to his inability to be at his
appointed place of duty as required, which formed the underling basis for
his administrative separation for unsatisfactory performance.  In view of
the fact that ultimately it was the applicant’s unsatisfactory performance
which resulted in his separation, under the provisions of Army Regulation
635-40 he could not have been referred for disability processing even if
his knee condition did in fact render him unfit.

3.  The applicant’s argument that medical officials were recommending a
medical board but that his commander instead unjustly created a case for
administrative separation is without foundation.  Rather, the evidence
appears to suggest that members of the applicant’s chain of command
attempted to remedy the applicant’s behavioral problems through periodic
counseling and only imposed NJP actions months later when the applicant’s
conduct did not improve.  It was only after counseling and the NJP actions
that the applicant’s chain of command ultimately determined that an
administrative separation was the appropriate avenue to deal with his
unsatisfactory performance.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JH___  ___LE  __  ___HF__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis to amend the decision of
the ABCMR set forth in Docket Number AR2003084240, dated 16 September 2003.




                                  ______James Hise________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004104145                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041118                                |
|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.                      |                                        |


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