MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            1 September 1999  
	DOCKET NUMBER:   AR1999023122

	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. Deborah L. Brantley		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Kenneth L. Wright		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, disability retirement.

APPLICANT STATES:  He was a passenger in a vehicle, which was involved, in a serious accident.  As a result of the accident he underwent emergency surgery but worked hard and was “back in uniform in a matter of months.”  He notes that when he returned from “TDY to Wright Patterson Air Force base to undergo a colonoscopy for possible medical discharge” he was given a chapter 13 for unsatisfactory performance.  He maintains the discharge was inappropriate and that his medical problems have bee compounded as a result of his service connected disability.  The applicant request that he be given a “medical discharge with all benefits due to [him] for the last nine years of [his] life” and that the he be “accepted by the United States Government as an employee with rank and time since [his] discharge.”  In support of his request he submits a 1993 letter from the American Legion, which he indicates he did not receive until 1998, regarding his request for a personal appearance before the Army Discharge Review Board.  He also submits copies of certificates indicating successful completion of three training courses at North Central Technical College in 1998.

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

He entered active duty on 22 October 1985.  A 23 February 1988 memorandum contained in the applicant’s file indicates that the he had been punished on three occasions under Article 15 of the UCMJ.  He was punished on one occasion for driving under the influence, once for failing to report to his place of duty, and once for failing to obey an order. The document noted that at the time the applicant’s duty performance was sporadic in that he failed to keep his supervisors informed and put no emphasis on scheduled events such as training requirements or formations.

In March 1988 his commander initiated a local bar to reenlistment citing the applicant's repeated offenses, including a civil court action for speeding, no operator’s license and possession of a controlled substance.  The applicant acknowledged receipt of the proposed bar and made no statements in his own behalf.  The local bar was approved in April 1988 and confirmed in October 1988.

In February 1989 the applicant was issued a permanent “P-2” profile following a partial colon resection.  The profiled noted that while the applicant would require access to a latrine 2 to 4 times per day there were no limitations on his physical activity.

In June 1989 his unit commander notified the applicant that he was initiating action to administratively separate the applicant for unsatisfactory performance.  His commander cited the applicant’s lack of respect for military rules, his incidents of spouse abuse, UCMJ actions, and his apathetic attitude and unwillingness to abide by the rules and regulations of the Army as a basis for the separation.  The commander noted the applicant met retention medical standards.  

The applicant acknowledged receipt of the proposed separation and submitted a statement indicating that he felt the separation was improper.  He cited his contention that his UCMJ actions were unfair, that he and his spouse were trying to reconcile their marriage, and that he “would have overcome [his local] bar if [he] had not got into a MVA [motor vehicle accident].”

The proposed separation was approved and on 14 July 1989 the applicant was discharge under honorable conditions under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.

Army Regulation 635-40 states that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonable perform because of a physical disability incurred or aggravated in service.  When a solider is being processed for separation or retirement 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 or retirement, 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.  The presumption of fitness may also be overcome by an acute, grave illness or injury or other significant deterioration of the soldier’s physical condition occurred immediately prior to, or coincident with processing for separation or retirement for reasons other than physical disability and which rendered the soldier unfit for further duty. 

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, at paragraph 3-3a, provided, in pertinent part, that performance of duty despite an impairment would be considered presumptive evidence of physical fitness.

In 1993 the Army Discharge Review Board denied the applicant’s appeal to upgrade his discharge so that he could receive educational benefits from the VA.

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.  Although the applicant may have had a permanent physical profile at the time of his separation his continued performance of duty until his separation from active duty in July 1989 raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness of injury concomitant with his separation.

2.  The evidence of record indicates he did not have any medically unfitting disability, which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

3.  The fact that he may not have received a notice from the American Legion regarding his appeal to the Army Discharge Review Board in no way impacts on the fact that there was no basis for separating the applicant by reason of medical 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

___sk___  __jea___  ___klw__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999023122	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990901	
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.		
3.		
4.		
5.		
6.