MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           12 May 1999   
	DOCKET NUMBER:   AR1999016537

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. James E. Anderholm		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 discharge for entry level performance and conduct, with a character of service as “Uncharacterized” be changed to either honorable, or that he be granted a discharge for physical disability.  

APPLICANT STATES:  That he was lied to by an Army recruiter, who told him that he could enlist as a combat medic, and once he was assigned to a duty station, he could qualify [and be assigned], in the only field in which he was interested, firefighter; only to find out that the Army had not had active duty firefighters for over 10 years.

He was unduly harassed, both physically and mentally, during basic training, injuring his right shoulder, and was informed by a medic that he had a torn deltoid, and restricted him from any upper body exercises for awhile.  While at basic training, he was informed by another soldier, that the MOS (military occupational specialty) of 51M, firefighter, was limited to the Reserve, but he decided to verify this before asking for an entry level separation.  During the first few days of advanced training at Fort Sam Houston, he was further harassed and humiliated. He could not take any more physical harassment, and went AWOL.  While home in Massachusetts, he contacted his commanding officer, who told him that she would look into the conduct of her NCOs, and that he would get an entry level separation shortly after he returned to his unit.  He spent a few days with his wife and unborn child and then turned himself in.  Almost a month after his return he received information from the Red Cross that his child was stillborn.  He requested to go home, but his commanding officer refused his request, and only after the intervention of a member of congress was his discharge completed.  He returned too late to see his baby while she still looked human.  He could never use the EMS (emergency medical services) training he received prior to entering the Army because he could not trust himself to work on a child.

His shoulder still bothers him and he has recently been diagnosed as suffering from peripheral sympathetic dystrophy, which caused damage to his nervous system in his right arm and seriously limits the use of it as well as his right hand.  Extreme emotional and psychological damage was inflicted on him.  He should have received a medical discharge and compensation for his injuries.

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

The applicant enlisted in the Army Reserve for eight years in the delayed entry program on 31 January 1994.  His enlistment documents, which he signed, clearly show that he enlisted for MOS 91B10, medical specialist, and airborne training.  He was discharged from the delayed entry program and on                   1 March 1994 enlisted in the Regular Army for four years.  Those enlistment documents, which he signed, also show that he enlisted for MOS 91B10, medical specialist, and airborne training.  Additionally, as part of his enlistment contract, he stated that he understood that he would not be guaranteed any specific military skill or assignment except as shown in his enlistment documents, i.e., medical specialist and airborne training.

After completing training at Fort Leonard Wood, he was assigned to Fort Sam Houston in May 1994 for medical specialist training.  
 
A 20 May 1994 report of mental status evaluation indicates that the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, and met the medical standards for retention in the Army.  There was no evidence of a mental disease or defect of psychiatric significant or of sufficient severity to warrant disposition through medical channels.  He was cleared for an administrative action deemed appropriate.

On 23 May 1994 he received nonjudicial punishment under Article 15, UCMJ, for AWOL from 10 May to 16 May 1994.

On 24 May 1994 the applicant was counseled and informed that he was being considered for an administrative separation from the Army.  
 
On 24 May 1994 the applicant stated that he did not desire a separation medical examination.

On 31 May 1994 the applicant’s commanding officer notified the applicant that she was initiating action to separate him from the Army under the provisions of Army Regulation 635-200, chapter 11, entry level status performance and conduct, because of his many personal problems and his inability to concentrate on his duties as a soldier.  The applicant stated that he had been afforded the opportunity to consult with counsel and declined to do so.  He stated that he understood the basis for the contemplated action, its effects, and the rights available to him.  He declined to submit a statement in his own behalf, and stated that he understood that he would receive an uncharacterized discharge.

The applicant’s commanding officer recommended to the separation authority that the applicant be separated from the Army.
 
On 6 June 1994 the Brigade Chaplain recommend that the applicant be separated, stating that he was not adapting to military life, that the applicant believed the recruiter lied to him, and after finding out [that he could not be a firefighter], he went AWOL three days after the medical specialist course started. The Chaplain stated that the applicant would not successfully complete any future advanced training.

A 7 June 1994 correspondence from the American Red Cross at Fort Sam Houston shows that that agency received a message from the Red Cross in Springfield, Massachusetts, in which the applicant’s mother requested that he be notified and requested his presence [at home] due to the loss of his fiancée’s baby.

The separation authority approved the recommendation to discharge the applicant.  He was discharged on 9 June 1994.  He had 3 months and 9 days of service.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11 of that regulation provides for the separation of personnel in an entry level status for unsatisfactory performance or conduct as evidenced by inability, lack of reasonable effort or a failure to adapt to the military
environment.  These provisions apply only to individuals whose separation processing is started within 180 days of entry into active duty.  An uncharacterized separation is mandatory under this chapter.  Separation will be accomplished within 3 duty days following approval by the separation authority.
 
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 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 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.

Army Regulation 611-201, the Army manual for military occupational specialties, lists MOS 51M, firefighter.  Information from the Total Army Personnel Command (PERSCOM) career management branch responsible for the assignment and utilization of personnel in that MOS, revealed that MOS 51M is in the active Army inventory, and that active Army units are authorized personnel in that MOS.  

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 discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is appropriate and in accordance with regulations.

2.  There is no evidence of record to substantiate the applicant's claim that he was misled or lied to be recruiting officials.  He signed documents stating that he wanted to be trained as a medical specialist and that he wanted airborne training. There is nothing to indicate otherwise.

3.  There is no medical evidence, nor has the applicant submitted any, to show that he was medically unfit for separation.  He himself stated that he did not desire a separation physical examination.  He had the opportunity, during the separation proceedings, to submit a statement in his behalf.  He declined to do so.

4.  The actions by the Army in this case were proper, and there is no doubt to be resolved in favor of the applicant

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

6.  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.

7.  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__  ___aao__  ___jea__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999016537	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990512	
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. 108.00		
2.  110.00		
3.		
4.		
5.		
6.