RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 December 2004
      DOCKET NUMBER:  AR2004102151


      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             |
|     |Mr. Robert J. McGowan             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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, in effect, that his General (under honorable
conditions) separation from the Army National Guard as an unsatisfactory
participant be upgraded to Honorable by reason of physical disability.

2.  The applicant states that he hurt his knee during physical training and
the National Guard denied him medical treatment and unjustly discharged
him.

3.  The applicant provides a statement and a copy of his NGB Form 22
(Report of Separation and Record of Service).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Ohio Army National Guard (OHARNG) on
11 June 1997.  He was trained as a Technical Engineering Specialist in
military occupational specialty (MOS) 51T and was assigned to the 512th
Engineer Battalion, Cincinnati, Ohio.

2.  On 7 March 1999, the applicant was present for a weekend drill.  During
physical fitness training, he injured his right knee.  An informal line-of-
duty (LOD) investigation was conducted which found the applicant's injury
to have occurred in the line of duty.  The LOD was approved on 24 March
1999.

3.  On 12 March 1999, the applicant underwent examination at the Veterans
Administration (VA) hospital.  The examination showed "mild degenerative
changes involving the medial compartment [of the right knee] with
subcondylar sclerosis."  The applicant was also briefed and signed a
disability counseling statement informing him that he could not seek
private medical care without OHARNG approval.

4.  In July 1999, the applicant underwent an operation to replace his
anterior cruciate ligament (ACL) in his right knee.  On 26 May 2000, he had
arthroscopic surgery to repair a medial meniscus tear.

5.  The administrative separation packet is not a part of the record.
However, in late July or early August 2000, the applicant was processed for
separation as an unsatisfactory participant because he missed an
undisclosed number of drills.  He rebutted the charges in the separation
packet on 22 August 2000 by stating
that he disputed the number [10] of missed drills because his doctor sent
excuses for 4 absences.  He also contended that he was simply too ill to
participate in National Guard activities and asked to be released from
further obligation to serve.

6.  On 1 September 2000, the applicant was separated from the OHARNG with a
General discharge under the provisions of paragraph 8-26k, National Guard
Regulation (NGR) 600-200, unsatisfactory participant.

7.  In the processing of this case, an advisory opinion was obtained from
the Chief, Personnel Division, National Guard Bureau which states that the
applicant was separated because he was an unsatisfactory participant and
that his knee condition did not prevent him from attending drills or annual
training.  The applicant was provided an opportunity to respond to the
advisory opinion and stated that he was on prescription medication
(darvocet and vicodin) and could not function as a Soldier.  He states that
he did, in fact, report for duty, but became ill and began vomiting.  He
adds that his unit sent him to hard labor in a cemetery.  He reiterates his
contention that his unit denied him medical care.

8.  NGR 600-200, chapter 8, and Army Regulation 135-178 (Separation of
Enlisted Personnel), chapter 7, provide for the separation of enlisted
personnel of the Army Reserve and the Army National Guard for misconduct.
Specific categories include minor disciplinary infractions, a pattern of
misconduct, unsatisfactory participation [emphasis added], commission of a
serious offense, and convictions by civil authorities.  Action will be
taken to separate a member for misconduct when it is clearly established
that rehabilitation is impracticable or is unlikely to succeed and an unfit
medical condition (AR 40-501) is not the direct or substantial contributing
cause of his or her misconduct.  A discharge under other than honorable
conditions is normally appropriate for a Soldier discharged under this
chapter.  However, the separation authority may direct a general discharge
if such is merited by the Soldier’s overall record.  Only the separation
authority listed in AR 135-178, paragraph 1-25 may approve an honorable
discharge or delegate approval authority for an honorable discharge under
this provision of regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant injured his right knee in the line of duty on 7 March
1999.  He underwent an ACL replacement and a medial meniscus tear repair in
1999 and 2000.

2.  The applicant apparently did not report for drill on approximately 10
occasions between April 1999 and July 2000 and was the subject of
administrative separation action for unsatisfactory participation.
Although the separation packet is not in the record, administrative
regularity is presumed in the separation process.

3.  The applicant did not have a medically unfitting condition and was not
authorized separation by reason of physical disability.  Even when he was
recuperating from his surgeries, he could have continued to attend drills.
By his own admission in his rebuttal to the separation action, he did not
have medical excuses for all of his absences and was, therefore, absent
without proper authority (AWOL).

4.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mdm___  __jed___  __jbg___  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 for correction of the
records of the individual concerned.




                                        Mark D. Manning
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004102151                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041207                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |20000901                                |
|DISCHARGE AUTHORITY     |NGR 600-200 P8-26k                      |
|DISCHARGE REASON        |A27.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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