MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           30 December 1998                   
	DOCKET NUMBER:   AC77-04207B
				   AR1998014159

	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	
	Mr. W.W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Sherri V. Ward		Member	
	Mr. Van B. Cummingham		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:  Reconsideration of his previous application to correct his records by changing his undesirable discharge to physical disability retirement. 

APPLICANT STATES:  In effect, as the result of an motor vehicle accident he was physically and mentally incapable of performing his military duties.  He invites the Board to obtain his civilian medical records and his Social Security records.  He submits statements from his sister to substantiate his case.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 24 August 1977 .

The sister’s statements are new evidence that requires Board consideration. 

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 Board does not normally investigate cases.  It considers the evidence and argument submitted by applicants.  It is the applicants’ responsibility to obtain and submit the evidence to substantiate their considerations.

2.  The applicant's contention that he was unfit  together with the sister’s statement fail to outweigh the evidence of record, a psychiatric evaluation, and two physical examinations which found him qualified for separation (or retention). 

3.  Furthermore, Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides in paragraph 4-3 that an enlisted soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority (GCMA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.   This authority may not be delegated.  A copy of the determination must be entered into the case file when it is forwarded.  

4.  The applicant was being processed for discharge under conditions that could lead to separation under other than honorable conditions and absent specific action by the GCMA he was not eligible for physical disability processing. 
5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6.  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

__GDP__  __SVW__  __VBC_ _  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC77-04207/AR1998014159	
SUFFIX	B	
RECON		
DATE BOARDED	1998/12/30	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES        1.	108.00	
2.		
3.		
4.		
5.		
6.