MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 January 1999                  
	DOCKET NUMBER:   AC98-07097
                                              AR1998014405

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Robert W. Garrett		Member	
	Ms. Deborah S. Jacobs		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:  That his dishonorable discharge be upgraded. 

APPLICANT STATES:  That he “found the heroin under a tree and stuck them in my back pocket.  I was going to give it to the 1st Sgt, but forgot to when they came to my door and picked me up.”  Further, he indicates “I have been mentally ill since I was discharged and don’t have any references of character”.

COUNSEL CONTENDS:  The Disabled American Veterans was listed as counsel for the applicant.  Counsel was notified to review and provide comments; however, as of this date counsel has failed to respond.

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

The applicant enlisted on 30 October 1969 and was honorably separated on      9 December 1970 for the purpose of immediate reenlistment.  On 10 December 1970, the applicant reenlisted.  During the period 25 September 1970 to 
29 October 1971, the applicant served in Vietnam.  On 19 May 1975, he was dishonorably discharged as a result of conviction by a General Court-Martial.  At that time, his lost time amounted to 578 days.

On 14 December 1973, he was convicted by a General Court-Martial for possessing 58 packets (more or less) of heroin on 29 October 1973.  His approved sentence was a dishonorable discharge, forfeiture of all pay and allowances and confinement at hard labor for 2 years.

On 20 December 1973, upon being assigned to the Correctional Holding Detachment, United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas, a Report of Medical Examination found the applicant medically qualified for retention with a physical profile of 111111A.

On 13 September 1974, he was paroled and released from The USDB pending completion of Appellate Review.

On 27 August 1998, the Medical Advisor to the Army Review Boards Agency provided an opinion (ATTACHED) that the applicant was fit at time of discharge.

AR 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, their continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his 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.

Title 38, United States Code, sections 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, it is concluded:

1.  There is no evidence in the applicant’s records that he suffered from any physical or mental problems at the time of his court-martial and subsequent discharge.  This is further confirmed by a medical opinion by the Medical Advisor, Army Review Boards Agency.

2.  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.

3.  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

JH______  RWG___  DSJ_____  DENY APPLICATION

						Loren G. Harrell
						     Director

INDEX

CASE ID	AC98-07097/AR1998014405	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990120	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.