IN THE CASE OF:	  

		BOARD DATE:	    29 June 2010

		DOCKET NUMBER:  AR20090019551 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request to change his general discharge to a medical retirement.  

2.  The applicant states he is producing new and relevant evidence and he is sorry he submitted an incomplete request the first time.  

3.  The applicant provides copies of a DA Form 2173 (Statement of Medical Examination and Duty Status), a DA Form 3822 (Report of Mental Status Evaluation) and his statement, a Recommendation for Separation memorandum, a Standard Form 93 (Report of Medical History), a Psycho-Social Evaluation, a letter the applicant's doctor wrote to the Department of Veterans Affairs (VA) with medical reports, and his VA Rating Decision.  

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 AR20090008029 on 6 October 2009.

2.  The applicant submits copies of a DA Form 2173, a DA Form 3822, a Recommendation for Separation memorandum, a Standard Form 93, a Psycho-Social Evaluation, a letter from his doctor to the VA with medical reports, and his VA Rating Decision.  These documents are new evidence that will be considered by the Board.
3.  The applicant’s military records show he enlisted in the Regular Army (RA) on 29 May 1973 and was honorably discharged on 21 April 1975.  He again enlisted in the RA on 24 June 1981.  

4.  On 5 February 1986, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for the wrongful use of marijuana between 1 and 11 December 1985.  His punishment included a forfeiture of pay, 14 days of extra duty, and 7 days of restriction.  He elected to appeal the punishment and his appeal was denied on 17 March 1986.

5.  A DA Form 2173, dated 28 February 1986, shows the applicant was admitted to an Army Community Hospital for an injury to his back during field training.

6.  In a memorandum, dated 21 March 1986, the Chief, Social Work Service, U.S. Army Medical Department Activity, opined the applicant had the mental capacity to understand and participate in separation proceedings.

7.  A DA Form 3822-R, dated 17 April 1986, shows the applicant met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 and cleared him for any administrative action deemed appropriate by the command.  

8.  On 9 June 1986, the applicant was notified of his unit commander’s intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance based on a positive urinalysis.

9.  On 9 June 1986, after consulting with counsel, the applicant acknowledged the proposed elimination action for unsatisfactory performance.  He acknowledged he had less than 6 years of total active service and was therefore not entitled to have his case heard by an administrative separation board.  He also acknowledged he understood he might be issued a general discharge under honorable conditions and the effect of such a discharge.  He elected not to submit a statement in his own behalf.

10.  On 16 June 1986, the appropriate authority approved the separation recommendation and directed the issuance of a General Discharge Certificate.

11.  The applicant was discharged from active duty in pay grade E-4 on 24 June 1986, under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with a general discharge.  He was credited with completing 5 years and 1 day of net active service.  

12.  A Psycho-Social Evaluation for the period between 3 January and 26 March 2008 shows the applicant was diagnosed with post traumatic stress disorder, major depressive disorder, multiple anxieties, parasomnia (sleep disorder), work memory deficit, and central auditory processing disorders.  

13.  On 26 March 2009, the VA rated the applicant 20 percent disabled due to chronic muscular strain and 10 percent for neck arthritis.

14.  In a letter, dated 21 September 2009, the applicant’s doctor advised the VA of his current medical conditions.

15.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 at the time contained the policy and outlined the procedures for separating individuals for unsatisfactory performance, to include separation for those individuals who failed to maintain Army physical standards.  Service of individuals separated because of unsatisfactory performance would be characterized as honorable or under honorable conditions as warranted by their military records.

17.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  In pertinent part, it states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were considered and the available evidence shows the applicant was discharged on 24 June 1986 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance due to a positive urinalysis.

2.  There is no evidence of record and the applicant has failed to show through the evidence he submitted for reconsideration that he should have been issued a medical discharge.  While there is evidence to show he injured his back, there is no evidence to show he was ever issued a physical profile or that he was ever unable to perform his duties.

3.  The award of a VA rating does not establish entitlement to a medical discharge and/or medical retirement.  The VA operates under its own policies and regulations.  The VA awards ratings because a medical condition is related to service, i.e., service-connected.  In this case, the applicant was properly evaluated and he is being compensated for his service-connected medical conditions by the VA.

4.  The available evidence shows his discharge was accomplished in accordance with applicable regulations and the characterization of his service and the reasons were appropriate considering all the facts of the case.

5.  The overall merits of the case, including the latest evidence, are insufficient as a basis for reversal of the ABCMR's previous decision.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  __X____  ____X___  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 AR20090008029, dated 6 October 2009.




      _______ _  X _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20090019551



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ABCMR Record of Proceedings (cont)                                         AR20090019551



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