MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            3 December 1998
	DOCKET NUMBER:   AC98-11486

	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. Joyce A. Wright		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Roger W. Able		Member	

	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:  In effect, that his honorable discharge be changed
to show that he was discharged by reason of physical disability.

APPLICANT STATES:  In effect, that he should have been discharged due to physical disability instead of being honorably discharged.  He also states that he was released for an eye condition, which was the Army’s choice.

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

He enlisted on 29 September 1975 for a period of 3 years as a chaparral
crewman.

On 28 April 1976, the commander requested that the applicant be reclassified
to another military occupation specialty (MOS) due to a retinal detachment in
his right eye, for which he had been placed on a permanent profile of 111131.  He also recommended that the applicant be reclassified as a 62D asphalt equipment operation, 57E laundry and bath specialist, or 76Q Special Purpose Material Supply.  He further stated that the applicant was presently assigned to the Redeye Section, and that he was unable to utilize the sights on the redeye.

On 19 May 1976, the applicant appeared before a MOS Reclassification Board.  The President of the Board explained to the applicant his rights under Army Regulation 600-200, paragraph 2-46.  The Board deferred action on the applicant pending results of a Medical Evaluation Board (MEB) and pending his
eligibility to continue on active duty.  The MEB determined that current regulations indicated no MOS for which the applicant was medically qualified for and that there were shortages Army wide.

On 31 May 1976, the applicant appeared before the MEB.  The MEB 
determined that the applicant was medically qualified for duty with permanent
assignment limitations as evidence by a medical examination and a review of 
his medical records on 17 March 1976.  He was diagnosed as having a old retinal detachment in his right eye.  The MEB also indicated that he must use his left eye to fire his weapon.

On 20 September 1976, the applicant requested that his contract be reviewed
for possible erroneous enlistment.  He also requested that after the review if it 
was found that he had a legitimate complaint and an erroneous enlistment,
that he be discharged at the earliest possible date.

His request was indorsed by the commander on the same day.  The commander also stated that if the applicant’s enlistment contract was found to be erroneous, 
that he applicant be separated due to breach of contract. 

On 14 October 1976, the applicant’s request was forwarded for consideration 
through the proper channels.  After review of his case, the commander  determined that the enlistment option requested was erroneously honored by the Army.  The commander stated that while undergoing basic combat training, the applicant was given a medical examination on 2 October 1975 and at that time it was determined by the examining physician that the applicant had poor eyesight and was given a profile 3 under the E factor.  He further stated that personnel at the US Army Reception Station should have informed the applicant that he was medically disqualified for training and choice/options described in paragraph 1d, of the DA Form 3286-3.  The commander concluded by stating that proper action was not taken and the applicant was transported to Fort Bliss for his advance individual training in MOS 16P.  The applicant stated that he did not desire training in an alternate MOS and that his Personnel Qualification Record did not disclose that his enlistment commitment had been waived.

The applicant case was forwarded to PERSCOM, Special Actions Branch for
final review on 30 December 1976.  The Chief, Special Actions Branch approved his request for separation under the provisions of Army Regulation 635-200, chapter 5-32, for erroneous enlistment.

Accordingly, the applicant was honorably discharged on 12 January 1977 under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-32, for
erroneous enlistment.  He had served 1 year, 3 months, and 14 days of total
active service.

Army Regulation 635-200 serves as the authority for the separation of enlisted personnel.  Chapter 5 of that regulation provides for the authorization for separation for the convenience of the government.  Paragraph 5-32, provides  discharges based on unfulfilled enlistment or erroneous enlistment commitments. It states in pertinent part, that an enlistment commitment is erroneous when the individual did not meet the prerequisites for the option which must be determined prior to enlistment or an enlistment commitment was made but cannot be fulfilled.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a
member is being separated by reason other than physical disability, his 
continued performance of duty creates a presumption of fitness which can be

overcome only by clear and convincing evidence that she was unable to perform her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

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 officer, grade, rank or rating and the conditions must have been incurred while entitled to base pay.

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

1.  The applicant’s medical condition did not warrant disability processing at the
time of his separation because his disability existed prior to entry into the service.
Therefore, he was not medically fit for entry into the service.

2.  The evidence of record clearly indicates that his impairment was noted on entry into the service and that despite his disqualification he was erroneously enlisted.  Consequently, he was properly discharged for erroneous enlistment.

3.  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.

4.  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

__rwa___  ___elw __  ___js ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

	AC98-11486	
SUFFIX		
RECON	 	
DATE BOARDED	1998/12/03	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1977/01/12	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON		
BOARD DECISION	NC	
REVIEW AUTHORITY		
ISSUES         1. A06.00		
2.		
3.		
4.		
5.		
6.