MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  8 September 1999
	DOCKET NUMBER:   AR1999021180

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Karen L. Wolff		Member	
	Mr. Orville W. Troesch, Jr.		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:  Correction of his records to show that he was separated with a medical discharge for a service-connected injury.

APPLICANT STATES:  In effect, that the VA initially determined that his injury was service–connected and approved a disability rating of 10% and upgraded his rating twice, the first time to 30% and then to 40%.  He further stated that he admitted his transgressions to a recruiter; and that since the VA recognized his injury as service-connected, his past transgressions should be voided and his discharge upgraded.

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

His military medical records, separation documents and VA medical and rating decision documents were obtained from the VA.

He enlisted on 1 July 1985 for a period of 4 years and training in military occupation specialty (MOS) 31K, combat signaler.  His enlistment document indicated that he had been arrested by civilian authorities and listed one offense, disorderly conduct, in April 1977.

He completed his basic combat training and began advanced individual training (AIT) in MOS 31K at Fort Gordon, Georgia on 3 September 1985.  There was no evidence in his records indicating that he completed AIT.

A dermatology consultation sheet dated 5 September 1985, noted complaints of facial spots for 3 months and an impression of vitiligo (skin disorder).

On 12 November 1985, his unit commander was notified by the U.S. Army Central Personnel Security Clearance Facility, Fort Meade, Maryland, that his security investigation file indicated the existence of possible fraudulent entry into military service due to his failure to list all of his civilian arrests.

A medical consultation sheet dated 25 November 1985, noted involvement of a rash on his face, right foot and left hand.

On 6 December 1985, his unit commander initiated separation action for fraudulent entry under the provisions of Army Regulation (AR) 635-200, Chapter 7 for concealing his record of civilian arrests over an 11 year period from 1974 to 1985.  His arrest record including numerous assault and battery charges, attempted murder, theft, and burglary.  He was also convicted for battery, criminal trespassing and auto theft. 

His report of medical history indicated that at the time of his separation
processing, he was being treated for pityriasis rosea, an inflammatory skin disease.  His report of medical examination qualified him for separation.

His report of mental status evaluation indicated that he was mentally responsible and that he had the mental capacity to participate in administrative proceedings. 

On 7 January 1986, the separation authority approved command’s request for separation and directed his entry level separation with uncharacterized service.

His DD form 214, separation document, shows that he was separated on 
3 February 1986, in an entry level status for fraudulent entry in accordance with AR 635-200, Chapter 7.  He had completed 7 months and 2 days of creditable service.

AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 7, paragraph 7-17, of that regulation provides, in pertinent part, that a fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all disqualifying information requiring a waiver.  A soldier who concealed his or her conviction by civil court of a felonious offense normally will not be considered for retention.  Soldiers separated under this chapter may be awarded an honorable discharge, or a general discharge, or a discharge under other than honorable conditions.  If in an entry level status the characterization will be uncharacterized.  

On 26 March 1998, a VA rating decision document indicated a diagnosis of vitiligo on his face, arms and legs.  The document also indicated a 10 % service-connected disability rating from 4 February 1986 which was increased to 30 % on 22 October 1989.

AR 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.

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, it is concluded:

1.  The applicant’s request is not warranted considering the evidence of record.

2.  The evidence of record clearly indicated that even though he was being treated for a skin disorder at the time of his separation, this disorder did not render him medically or physically unfit to be considered for processing through medical channels.  There was nothing in his records or in the evidence submitted by him to indicate otherwise.

3.  His administrative separation for fraudulent entry was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

4.  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.

5.  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

__FM___  ___KW__  __OT____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021180	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990908	
TYPE OF DISCHARGE	(UNCHAR)	
DATE OF DISCHARGE	19860203	
DISCHARGE AUTHORITY	AR623-200	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.