MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            10 March 1999
	DOCKET NUMBER:   AC97-05920
				   AR1998013472

	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.	Loren G. Harrell		Director	
	Ms.	Deyon D. Battle		Analyst	

	The following members, a quorum, were present:

	Mr.	Fred K. McCoy		Chairperson	
	Ms.	Meta Waller		Member	
	Mr.	Kenneth L. Wright		Member	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	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)

APPLICANT REQUESTS:  That his honorable discharge be changed to a medical discharge.

APPLICANT STATES:  That he was discharged unjustly because of what he wrote in a letter to his congressman, not because of disciplinary problems.  He further states a medical board based its decision on the documentation that he submitted to his commander regarding his bar to reenlistment instead of his medical problems.  In support of his appeal, he submits four letters written to his congressman, dated 20 July 1993, 20 May 1994, 25 August 1995 and 30 October 1995 describing his medical condition, explaining the events which lead to his bar to reenlistment and separation under the QMP, and articulating the Department of Veterans Affairs’ (VA) decision to award him a service connected disability rating of 30 percent.  He also submits numerous medical documents reflecting his medical diagnoses both before and after his discharge from the Army.

COUNSEL CONTENDS:  That the applicant has constant pain in his chest.  Counsel further states that on numerous occasions, after little or no exertion, he has had episodes of severe pain that mirrors the symptoms of a heart attack.  He states that the applicant has permanent physical restriction as to lifting and carrying no more than ten pounds so he is pretty much limited to sedentary work.  Counsel continues by stating that the applicant has gained a considerable amount of weight since his injury and this service connected condition has given him problems finding suitable employment.  He concludes by stating that the applicant’s current job is in jeopardy based on his health and that the VA has recently agreed and increased his service connected disability rating from 10 percent to 30 percent.

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

On 2 April 1976, he enlisted in the Army for 3 years in the pay grade of E-1.  He successfully completed his training as a administrative specialist and as a material storage and building specialist.  He remained on active duty through a series of reenlistments.

On 30 July 1987, while he was attending Drill Sergeant School at the Noncommissioned Officers Academy at Fort Dix, New Jersey, the applicant was notified that he was being removed from school for his lack of motivation.  The letter of removal indicates that he had been counseled on numerous occasions regarding his lack of motivation and professionalism.  The letter further indicates that his Drill Sergeant Leaders did not believe that he displayed the motivation or desire necessary to become a productive and efficient drill sergeant.  The acting Commandant recommended that he not be considered for reentry at a later date into the Drill Sergeant Program and that a copy of the letter removing him from the school be placed in his Official Military Personnel File (OMPF).  In the letter, the applicant was informed of his right to submit a rebuttal to the letter of removal.  He acknowledged receipt of the letter and he indicated that he did not desire to submit a rebuttal.

The appropriate authority approved the recommendation for removal of the applicant from the Drill Sergeant School on 31 July 1987.  Accordingly, he was removed from the school and a copy of the letter recommending removal was replaced in his OMPF.

On 24 January 1992, the applicant was notified that his records were reviewed by the calendar year 1991 Sergeant First Class Advanced Noncommissioned Officers Course (ANCOC) Promotion Selection Board and that he was being barred from reenlistment under the Qualitative Management Program (QMP).  The selection board cited the letter of removal from Drill Sergeant School as a basis for his bar to reenlistment.  The applicant acknowledged receipt of the notification and he indicated that he would submit an appeal in his own behalf.

The applicant submitted an appeal to his bar to reenlistment on 11 February 1992.  In his appeal, he indicated that he encountered situation of discrimination from several instructors because of his military occupational specialty and instructors attitudes changed when he reported the incidents to the Assistant Senior Drill Sergeant.  He further indicated that he started receiving failing grades and counseling after he reported his grievances and that he requested to be withdrawn from the course rather than to jeopardize his career with a chance of disciplinary removal.

The records show that the applicant was placed on several temporary profiles while he was on active duty.  However, on 29 May 1992, he was placed on a permanent profile as a result of being diagnosed as having cervical tension syndrome.

On 1 July 1992, the applicant was notified that a Standby Advisory Board reviewed his appeal and that his appeal had been disapproved.  The board judged that his past performance and estimated potential were not in keeping with the standards expected of the Noncommissioned Officers Corps.  He was informed that he must be separated from the Army not later than 30 September 1992.

The records are incomplete with respect to the actions taken by a Medical Evaluation Board and the Physical Evaluation Board.  However, the records do show that the applicant was retained on active duty, past the expiration of his term of service, for completion of a Physical Evaluation Board. 

On 30 November 1992, the applicant was honorably discharged under the QMP, under the provisions of Army Regulation 635-200, paragraph 16-8 for reduction in authorized strength.  He had completed 16 years, 7 months and 29 days of total active service.

A VA rating decision, dated 18 March 1994, shows that the applicant was granted 10 percent service connection disability rating for hypertrophy trapezius and supraspinatus muscles, right shoulder.  The VA also granted him a 10 percent service connection disability rating for central disc protrusion with formation on both sides of the neck and a 10 percent service connected disability rating for low back strain.  He currently has a combined service connected disability rating of 30 percent.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the Medical Advisor, DA Review Board Agency.  It contains no information, advice or recommendation, which would constitute a basis for granting the relief requested.

The applicant submitted an undated rebuttal to the staff advisory opinion (COPY ATTACHED) in which he states that the opinion only focuses on his bar to reenlistment and not his medical condition.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 16 covers discharges caused by changes in service obligations.  Paragraph 16-5 applies to personnel denied reenlistment and provides that soldiers who receive DA imposed or locally imposed bars to reenlistment, and who perceive that they will be unable to overcome the bar may apply for immediate discharge.  Paragraph 16-8 provides that personnel will be notified of the separation by appropriate commanders and be provided the basis for the separation.

Army Regulation 601-280, chapter 10, sets forth policy and prescribes procedures for denying reenlistment under the QMP.  This program is based on the premise that reenlistment is a privileges for those whose performance, conduct, attitude, and potential for advancement meet Army standards.  Centralized enlisted promotion boards select individuals whose records indicate that they are nonprogressive and nonproductive soldiers for bars to reenlistment under the QMP.  Thereafter, the Assistant Secretary of the Army directs the separation of the individuals who are selected under the QMP in order to comply with Congressionally mandated budgetary and manpower restriction.
Title 38, United States Code, section 310 and 331, 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

2.  The contentions of the applicant and his counsel have been noted by the Board.  However, a review of the records fails to show that he had any medical disqualifications at the time of his discharge, which would have rendered him unfit for further retention in the Army.

3.  The applicant was removed from Drill Sergeant School for his lack of motivation and professionalism.  The letter removing him from the school was properly placed in his OMPF and reviewed by the calendar year 1991 Sergeant First Class ANCOC Promotion Selection Board.  As a result, he was barred from reenlistment and he was appropriately discharged under the QMP.  The fact that the VA has now awarded him a combined service connected disability rating of 30 percent does not reflect that his discharge under the QMP was in error or unjust.

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 the aforementioned requirement.

5.  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

__klw ___  __mw___  ___fkm __  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-05920/AR1998013472	
SUFFIX		
RECON	 	
DATE BOARDED	1999/03/10	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1992/11/30	
DISCHARGE AUTHORITY	AR635-200, para16-8	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  471, 488		
2.		
3.		
4.		
5.		
6.