MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           2 September 1999                   
	DOCKET NUMBER:   AR1999023070

	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. Margaret K. Patterson		Chairperson	
	Mr. Thomas N. Kuhn		Member	
	Mr. James M. Alward		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 separation be changed to a medical retirement.

APPLICANT STATES:  That he told his company commander of his injury but he was ignored.  His VA records will show he received permanent nerve damage caused by Army medics at Camp Stanley, Korea that has seriously hampered his ability to gain meaningful employment.  No supporting documentation is provided.  

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

After having had prior service in the Regular Army, he reenlisted on 26 July 1983.  He was assigned to Headquarters and Headquarters Battery, Division Artillery, 2d Infantry Division, on 15 August 1983.

The applicant’s service medical records are not available.  His DA Form 2A, Personnel Qualification Record, dated 27 September 1983 shows his physical category code as A and his physical profile serial as 111111, a high level of medical fitness.

On 17 October 1983, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to have a Liberty Pass in his possession.

On 30 January 1984, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty and for disobeying a lawful order.

Between January and February 1984, the applicant was counseled on four occasions for failing to repair, breaking restriction, and failing to obey instructions.

On 27 February 1984, the applicant’s commander initiated separation proceedings under the provisions of Army Regulation 635-200, Chapter 13 for unsatisfactory performance.  His recommendation cited the applicant’s unsatisfactory performance of his duties caused in part by his negative attitude, contempt for military bearing and discipline, and unwillingness to abide by Army regulations or to adapt to the standards of conduct required by the U. S Army.

On 27 February 1984, the applicant acknowledged receiving notification of the elimination action.  His election of options statement is not available.

On 6 March 1984, the appropriate authority approved the recommendation and directed that the applicant be given a general discharge.

On 14 March 1984, the applicant was discharged, with a general discharge under honorable conditions, in pay grade E-1 under the provisions of Army Regulation 635-200, Chapter 13 for unsatisfactory performance.  He had completed 7 months and 19 days of creditable active service on that enlistment and had no lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander’s judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory soldier.  

Army Regulation 635-40 governs the evaluation for physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  Paragraph 3-2 of that regulation states that, when a soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the soldier is scheduled for separation, creates a presumption that the soldier is fit.  The presumption of fitness may be overcome if the evidence establishes that the soldier was, in fact, physically unable to perform adequately the duties of his or her office, grade, rank or rating for a period of time because of disability.  There must be a causative relationship between the less than adequate duty performance and the unfitting medical condition or conditions.

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

3.  The evidence of record shows the applicant was separated for unsatisfactory performance not because of a physical inability to perform his duties but because his negative attitude, contempt for military bearing and discipline, and unwillingness to abide by Army regulations or to adapt to military standards of conduct caused his unsatisfactory performance.

4.  There is no evidence of record to show the applicant had a physical profile or was otherwise physically unfit to perform his duties and the applicant has not provided any such evidence.

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

__mkp___  __tnk___  __jma___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023070	
SUFFIX		
RECON		
DATE BOARDED	19990902	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.