MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:    

	BOARD DATE:            21 April 1999                  
	DOCKET NUMBER:   AC93-13186A
				   AR1999015453

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Gary F. Geraets		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 upgrading his discharge and to afford him disability separation or retirement.

APPLICANT STATES:  In effect, that the misconduct that led to his discharge was the result of not receiving any assistance from his chain of command following incidents of physical assault.  He states that “he was done wrong” and that is why he had to get out no matter what.  He also contends, in effect, that as the injury to his eye occurred prior to the misconduct he should be considered for a disability evaluation.

NEW EVIDENCE OR INFORMATION:  This applicant’s case is reopened in accordance with the Army Board for Correction of Military Records Reconsideration Project (ABCMR-RP) criteria.  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 13 December 1995 (COPY ATTACHED). 

The applicant’s submission and contentions are virtually identical to those previously submitted.  However, he appears to raise the question of disability separation, which has not previously been addressed by the Board, hence, constitute new argument that requires Board consideration.

The applicant submits a copy of a permanent physical profile, dated 29 April 1964, in support of his contentions.  This document shows him as having a “2” rating for both hearing and vision, with a determination of limitations of duty as he could not drive military vehicles.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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 office, grade, rank or rating.

Army Regulation 40-501, chapter 7, provides regulations and policies for physical profiling.  The basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors: P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.

Army Regulation 635-40, paragraph 1-2, provides that a soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority that made the decision. 

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.  Applicant was found to be fit for duty with only specific limitations as a result of the injury to his eye.  He was performing duty commensurate with his grade and rating at the time of the commission of the offences that lead to his discharge.  Therefore, even without the court-martial charges he did not meet the disability requirements for consideration for a medical separation.  Additionally, he was being processed for elimination and was not eligible for disability processing.

2.  The applicant has submitted no evidence mitigating argument to support his contentions that he was improperly discharged.

3.  In view of the applicant's numerous acts of disciplinary infractions, it does not appear that his BCD was too severe.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

4.  The Board notes that the applicant appears to have been erroneously issued a Under Other Then Honorable Conditions discharge certificate and denotation on his DD Form 214.

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

__CMF__  ___SK___  __GFG__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC93-13186A
AR1999015453	
SUFFIX		
RECON		
DATE BOARDED	19990421	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19660815	
DISCHARGE AUTHORITY	AR 635-204 para 1b	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	191	
2.	177	
3.		
4.		
5.		
6.