MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 February 2000                   
	DOCKET NUMBER:   AR1999025457

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Ms. Carol Jo Suiter		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:  That the undesirable, under other than honorable conditions discharge of her deceased brother, a former service member (FSM) be changed to a medical discharge.

APPLICANT STATES:  That the FSM was ill at the time of his separation.  His DA Form 20, Enlisted Qualification Record shows he failed the physical fitness test on 6 June 1959.  He never qualified physically to be in the Army.  His separation physical shows he had passive-aggressive reaction chronic, severe and orthostatic albuminuria.  That is abnormally large quantities of protein in the urine, especially teenagers who have been standing for a long period (her brother was only 17).  It is of no pathologic significance.  This shows he was ill at the time he separated and so he should have been given a medical separation.  Supporting evidence is as listed on the DD Form 149.

EVIDENCE OF RECORD:  The FSM’s military records show:

He completed his enlistment physical examination on 2 May 1959.  His SF Form 88, Report of Medial Examination showed he was 5 pounds underweight but he otherwise denied any significant serious symptoms, illnesses or injuries.  He was found qualified for enlistment.  He enlisted in the Regular Army on 27 May 1959. 

The FSM’s DA Form 20, item 24 contains the entry “Phy Fitness  269  F  6 Jun 59.”  It is not known if the “F” stood for fail or something else; however, the applicant went on to complete basic training and advanced individual training and was awarded military occupational specialty 140.00 (Artilleryman).  His DA Form 24, Service Record, shows that his conduct and efficiency ratings from 27 May 1959 through 21 January 1960 were “excellent,” from 22 January through 3 April 1960 were “unknown” and from 4 April through 14 June 1960 were “unsatisfactory.”

On 17 September 1959, the FSM was convicted by a summary court-martial for absenting himself from his unit.   He was sentenced to forfeit $25.00.

On 5 February 1960, the FSM was convicted by a special court-martial of wrongfully appropriating a letter opener.  He was sentenced to be reduced to pay grade E-1, to be confined at hard labor for 3 months, and to forfeit $50.00 pay for 3 months.

On 22 April 1960, the FSM was convicted by a summary court-martial of lying down on a bed on his post.  He was sentenced to forfeit $55.00 pay.  

The FSM’s commander recommended he be separated under the provisions of Army Regulation 635-208 for unfitness.  He cited the FSM’s negative attitude toward his superiors and his duties and his habitual shirking.
On 26 April 1960, the FSM received a psychiatric evaluation.  He was diagnosed with passive-aggressive reaction, chronic, severe, manifested by general immaturity of actions, marginal behavior and low tolerance to stress.  He was found to be mentally responsible and able to distinguish right from wrong and to adhere to the right and to cooperate in his own defense if necessary.  No psychiatric contraindication to any administrative action deemed appropriate was found.  

On 27 April 1960, the applicant was notified of the contemplated separation action.

The appropriate authority approved the recommendation and directed the FSM receive an undesirable discharge.

On 8 June 1960, the FSM completed a separation physical.  He was found to have passive-aggressive reaction, chronic, severe and orthostatic albuminuria.  He was found qualified for separation.

On 14 June 1960, the FSM was discharged, in pay grade E-1, under the provisions of Army Regulation 635-208 for unfitness, with an undesirable discharge.  He had completed 11 months and 4 days of creditable active service and had 45 days of lost time (confinement). 

Army Regulation 635-208, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  The regulation provided for the discharge of individuals by reason of unfitness with an undesirable discharge when it had been determined that an individual’s military record was characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction or the unauthorized use or possession of habit forming narcotic drugs or marijuana; an established pattern for shirking; or an established pattern showing dishonorable failure to pay just debts.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty. 

In the processing of this case, an advisory opinion was obtained from the medical advisor to the Army Review Boards Agency.  The opinion noted that under the provisions of Army Regulation 40-501, which governs medical fitness standards for enlistment, retention and separation, neither passive-aggressive reaction nor  orthostatic albuminuria are causes for referral to a medical evaluation board.  The advisory opinion noted there was no medical reason to change the FSM’s discharge status.

The applicant rebutted the advisory opinion, reiterating that the FSM was ill and entitled to a medical discharge.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, 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 test for first determining if a soldier is eligible for referral to a medical evaluation board and therefore a medical separation is his ability or inability to perform his military duties.  There is no evidence of record to show the FSM was physically unfit to perform his military duties.  By regulation, a personality disorder, such as passive-aggressive reaction, is never cause for referral to a medical evaluation board and by the applicant’s own statement orthostatic albuminuria is of no pathological significance.  In addition, the evidence of record shows the FSM received “excellent” conduct and efficiency ratings for most of his term of service thereby showing that he was not physically unfit. 

3.  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

__RVO___  __DSJ___  __CJS___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999025457	
SUFFIX		
RECON		
DATE BOARDED	20000209	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19600614	
DISCHARGE AUTHORITY	AR 635-208 	
DISCHARGE REASON	A50.00	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	108.00	
2.		
3.		
4.		
5.		
6.