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ARMY | DRB | CY2003 | 2003089382
Original file (2003089382.rtf) Auto-classification: Denied

PART II - APPLICATION DATA

(Note: Part I deleted under the Privacy Act on Reading Room copy)

1. Character of Discharge: Honorable

2. Date of discharge (or REFRAD): 971202

3. Authority for separation:

         a. Regulation: Chapter 4-24b(3), AR 635-40

          b. Reason: Disability, Severance Pay
4. Prior review(s): NONE


PART III - SERVICE HISTORY

SECTION A - Period of Service Under Review

 1.       Service data: 2. Awards and decorations:
                            NONE
a. Period entered for: 3 Years
b. Entry date: 970616
c. Age: 18 Years DOB: 780904
d. Educational level: HS Grad
e. Aptitude area score:
          GT: 91 3. Highest grade achieved:
f. Length of Service: E2
0 Year(s) 5 Month(s) 17 Day(s)

4. Performance evaluations:
NONE

PART III - SERVICE HISTORY
SECTION A - Period of Service Under Review - Continued

5. Periods of unauthorized absence: NONE

 Status Inclusive dates
         AWOL

         Mil conf

         Civil conf

         Other


6. Nonjudicial punishment: NONE
         Date     Offense(s)
        


7. Court-Martial data: NONE
         a. SCM:
                  Date Offense(s)

        
         b. SPCM:
                  Date Offense(s)

         c. GCM: 
                  Date Offense(s)


8.       Remarks: NONE
SECTION B - Prior Service Data
NONE

Other discharge(s):

          Service   From      To        Type Discharge





PART IV - PREHEARING REVIEW

SECTION A-ANALYST’S ASSESSMENT
l. Facts and Circumstances:

          a. The evidence of record shows that on 3 October 1997, a Physical Evaluation Board (PEB) determined that the applicant was physically unfit to perform his military duties due to a condition that occurred in line of duty and was not due to his own misconduct. The PEB recommended separation with severance pay. On 7 October 1997, having been informed of the findings and recommendations of the PEB, the applicant concurred with the PEB’s findings and recommendations and waived a formal hearing of his case. The record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty). His DD Form 214 indicates that he was discharged under the provisions of Chapter 4, AR 635-40 by reason of disability, severance pay, with a characterization of service of honorable.

         b. On 2 December 1997, the applicant was discharged. At the time of discharge, the applicant had completed 5 months and 17 days of active military service in the period under review.

2. Legal/Regulatory Basis for Separation Action : Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of a physical disability. Chapter 4, provides for the separation of enlisted soldiers found to be unfit by a Physical Evaluation Board (PEB) due to a condition which occurred in line of duty and not due do to the soldier’s misconduct. Paragraph 4-24b(3) provides that soldiers not having sufficient time in service for retirement would be separated by reason of disability with severance pay. Unless otherwise indicated, a soldier’s service will be characterized as honorable. If a soldier is in entry-level status at the time of processing, his or her service may be uncharacterized. A soldier is in an entry-level status if the soldier has not completed more than 180 days of creditable continuous active duty prior to the initiation of separation action.



SECTION B-APPLICANT’S SUBMISSIONS


 1. Issue(s) of propriety and/or equity submitted by applicant or counsel.
As stated on applicant’s DD Form 293.
2. Exhibit(s) submitted:

         A-1: DD Form 293, dated 030414, with three (3) enclosure(s).
         A-2: Counsel Issues: NONE
         B-l: Other Documents: NONE

PART IV - PREHEARING REVIEW (CONTINUED)



SECTION C - Medical and/or Legal Advisory Opinion


Referred to ( ) Medical Advisor ( ) Legal Advisor



 a. Medical prehearing comments (if applicable):

b. Legal prehearing comments (if applicable):
PART V - SUMMARY OF HEARING

SECTION A-Attendees and exhibits

1. Review/hearing information:

         a. Type requested:
          ( X ) Records review ( ) Hearing

          b. Type Held:
         ( X )Records review ( ) Hearing
         ( ) Tender Offer

         c. Review/hearing location and date: Washington, DC on 19 November 2003 .

         d. Appearance by:
         Applicant ( ) Yes ( X ) No
         Counsel ( ) Yes ( X ) No

          e. Applicant testified: ( ) Yes ( X ) No
        
         f. Counsel presentation: ( ) Yes ( X ) No
        
         g. Witness(es) testified: ( ) Yes ( X ) No
        
2. Exhibit(s) submitted at hearing:

PART VI - ISSUES AND FINDINGS

1. a. Applicant's issue(s) of propriety and/or equity:

          ( X )   Same as those listed on DD Form 293 and Part IV, Section A of this case report and directive.
         ( )     Revised issue(s) furnished in writing by applicant as follows:
          ( )     Additional issue(s) identified during review/hearing as follows:
         b. Request: ( X ) Recharacterization ( X ) Change of Reason
2. Finding(s), conclusion(s), and reason(s) for the Board's decision(s) on issues of propriety and/or equity:

          a. Propriety:    The applicant has not submitted an issue of propriety and the ADRB has not otherwise relied upon an issue of propriety to change the discharge.

          b. Equity:       The parenthetical number(s) below correspond(s) to the issue number(s) on the DD Form 293, or in Part VI, Paragraph 1, above.

 (1) The issue is rejected. The Board carefully examined the applicant’s record of service during the period of enlistment under review.
The proceedings of the Physical Evaluation Board found that the applicant had a medical condition that rendered him physically unfit to perform his military duties due to a condition that occurred in line of duty and was not due to his own misconduct. The applicant agreed with these findings and the proposed action for administrative separation from the Army. The Board noted the applicant’s contentions regarding the VA’s decision in his request for disability. The VA operates under its own policies and regulations and is not required to find medical unfitness for further military service. The Board found no evidence of arbitrary or capricious actions by the applicant’s command. The Board was satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The Board, being convinced that the reason for discharge and the characterization of service were both proper and equitable, voted to deny relief.

 3. Response(s) to item(s) not addressed as decisional issue(s): NONE
PART VII - BOARD ACTION
SECTION A - Conclusions/Decisions/Vote

1.       Board conclusion(s):

         The discharge was:

          ( X )    Proper.
         ( )      Improper as to characterization. Change characterization to                                      .
         ( )      Improper as to reason. Change reason to                         under                       .

         ( X )    Equitable.
         ( )      Inequitable as to characterization. Change characterization to                                .
         ( )      Inequitable as to reason. Change reason to                       
                  under                                  .
         ( )      Both proper and equitable, but characterization/reason for separation cited was an administrative/clerical error and should be changed to                      under                          .
2. Voting record: Change No Change
         Reason 0 5
Characterization 0 5

         The names and votes of the members of the Board are recorded in Part IX of this document and can be obtained by writing to the address below. The request must contain the CASE NO. located in the upper right corner of this document.

Department of the Army Review Boards Agency
ATTN: Promulgation Team
1941 Jefferson Davis Highway, 2nd Floor
Arlington, VA 22202-4508



3. Minority views: NONE

PART VII - BOARD ACTION
SECTION B - Verification and Authentication

Case report reviewed and verified       

                                 
Ms. McKim-Spilker
Case Reviewing Official 

PART VIII - DIRECTIVE/CERTIFICATION
SECTION A - DIRECTIVE
NONE
SECTION B - CERTIFICATION

Approval Authority:


SPURGEON A. MOORE
Colonel, U.S. Army
President, Army Discharge
Review Board

Official:




JOHN F. LONG
Lieutenant Colonel, U.S. Army
Chief, Secretary Recorder

EXHIBITS:
A - Application for review of discharge          C - Other
B - Material submitted by applicant

INDEX RECORD:

 AR Number: 2003089382 INDEX NUMBERS: A9217
Date of Review: 031119 A9321
Character of Service: HD A0100
Date of Discharge: 971202
Authority: AR 635-20 C4
Reason: A2800
Results of Board Action/
Vote/Affirmation: NC 5-0 A













PART IX - VOTING RECORD



 Name  Reason Characterization
 CHANGE NC HON UHC NC UNCHAR

1.      Mbr      X          X    

2.      Mbr      X          X    

3.      Mbr      X          X    

4.      Mbr      X          X    

5.      PO      X          X    






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