MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:            18 March 1999
	DOCKET NUMBER:   AC98-13093
                                              AR1999022198

	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	
	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. James M. Alward		Chairperson	
	Ms. Karen Y. Fletcher		Member	
	Mr. Ernest W. Lutz, 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:  In effect, that his discharge under other than honorable conditions be upgraded to show that he was discharged by reason of physical disability.

APPLICANT STATES:  In effect, that he had an unknown disability (bipolar disorder).

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

The applicant entered active duty 17 May 1977 and was discharged on 9 June 1978 under the provisions of AR 635-200, chapter 14, section II, for fraudulent entry.  His service from 17 May 1977 to 9 June 1978 was voided due to his fraudulent entry.

He later enlisted on 10 June 1980 as a cannon crewman.

The applicant’s records indicate that he received nonjudicial punishment (NJP) on 16 November 1980 for failure to go to his appointed place of duty and on 3 December 1980 for breaking restriction.  

The applicant underwent a mental evaluation on 18 February 1981 which determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to participate in administrative or judicial proceedings

On 16 March 1981, NJP imposed against the applicant for violation of a lawful general regulation on 26 February 1981.  His punishment consisted of a forfeiture of pay and 14 days extra duty.

The applicant underwent a separation medical examination on 20 April 1981 and was found qualified for separation with a 111111 physical profile. 

On 12 May 1981 NJP was imposed against the applicant for breaking restriction, for violation of a lawful general regulation and for failure to obey a lawful order from a noncommissioned officer.  His punishment consisted of a forfeiture of pay and 14 days restriction and extra duty.

On 14 July 1981 the applicant was notified by his commander that he was being recommended for discharge under the provisions of AR 635-200, chapter 14, for misconduct.  He based his recommendation on the applicant’s inability to respond to military authority, disrespect toward his superiors, and several pass and restriction violations.  On the same day the commander submitted his recommendation to separate the applicant under the provisions of AR 635-200, chapter 14, for misconduct.

On 12 August 1981, the separation authority approved the recommendation for discharge and directed that he be furnished an Other Than Honorable Discharge Certificate.  The applicant was discharged on 3 September 1981.  He had a total of 1 year, 2 months, and 24 days of creditable service.

There is no evidence or indication in the applicant’s records to show that he had 
a bipolar disorder.

The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 29 January 1983.  The ADRB determined that his discharge was proper and equitable, and denied his request on 19 September 1984.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable is unlikely to succeed.

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.

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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant’s service records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the applicant’s separation.

medical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.

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

JMA____  KYF_____  EWL____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-13093/AR1999022198	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990318	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19810903	
DISCHARGE AUTHORITY	AR635-200,Chapter 14	
DISCHARGE REASON	Misconduct	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.