MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 December 1998                   
	DOCKET NUMBER:   AC98-12412

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. Thomas B. Redfern, III		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, a medical discharge.

APPLICANT STATES:  It was not an erroneous enlistment.  He qualified in all entrance battery tests and the medical examination.  They did not want to give him a medical discharge.

COUNSEL CONTENDS:  Counsel makes no contentions.

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

He was first inducted into the Army on 25 March 1964.  He was discharged on    27 May 1964 under the provisions of Army Regulation 635-205.  The narrative reason for his discharge is not shown on the available DD Form 214.  That regulation provides for the separation of members for a number of reasons but, given the circumstances described below, it was presumably the chapter on separation of enlisted members of medical hold detachments that applied.

At some time the applicant enlisted in the Army National Guard of Puerto Rico.  He served a tour of active duty for training from 15 March 1965 – 1 September 1965.

On 3 December 1965, the applicant was again inducted into the Army.  He was honorably released from active duty on 1 December 1967.

On 6 June 1972, the applicant enlisted in the Regular Army.  On his DA Form 3286, Statements for Enlistment, he checked “no” to the question “Have you ever been…discharged from previous service…for medical reasons?”

On 18 December 1972, his local installation requested Headquarters, Department of the Army conduct an investigation to determine if the applicant’s current enlistment was fraudulent.  On 13 February 1973, The Adjutant General’s Office determined that since the applicant’s prior period of service did not present a bar to his reenlistment, his current enlistment was not considered fraudulent, but it was determined that it appeared to be an erroneous enlistment.

On 2 March 1973, the applicant requested discharge for erroneous enlistment.  He stated he had presented to his recruiter a letter from the Veterans Assistance Officer showing that he was drawing disability compensation from his prior service.  The recruiter asked no questions.  He was not aware he could not reenlist with a service-connected disability.  On 13 March 1973, he was honorably released from active duty under the provisions of Army Regulation 635-200 Chapter 5, erroneous enlistment.

On 19 October 1976, the applicant entered the Delayed Entry Program.  Only his service in the Army National Guard of Puerto Rico is listed in block requesting prior military service information.  He checked “no” to the question if he was now drawing disability compensation.  On 7 December 1976, the applicant voluntarily reported to his local Recruiting Command office and admitted his concealment of his previous service and his receipt of disability compensation.  He was discharged from the Delayed Entry Program.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  At the time, Chapter 5 provided for the retention, discharge, or release from active duty, as appropriate, when it was discovered that an individual’s enlistment was erroneous because he failed to meet the qualifications for enlistment or reenlistment.

Title 38, U. S. 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. 

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.	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.

2.  The applicant’s administrative separation in 1973 was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  An investigation revealed that he had contracted an erroneous enlistment because he concealed information.  He then requested to be discharged for erroneous enlistment.  A medical issue was never brought up.  He apparently received a discharge based upon medical considerations in 1964, for which the VA paid him disability compensation.

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______  FNE_____  TBR_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-12412	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	730313	
DISCHARGE AUTHORITY	AR 635-200, Chapter 5 	
DISCHARGE REASON	A93.00	
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.