MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  5 January 2000
	DOCKET NUMBER:  AR1999027427

	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. Karl F. Schneider		Director	
	Ms. Rosa M. Chandler		Analyst	

  The following members, a quorum, were present:

	Mr. Erin J. Olmes		Chairperson	
	Mr. John D. Miller		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:  That his general discharge (GD) be upgraded to a fully honorable discharge.

APPLICANT STATES:  In effect, that he suffered a back injury in April 1988 which impaired his ability to serve and has gotten worst since being discharged.  Prior to his discharge he was not properly counseled and did not fully understand what receiving a GD meant.  He was young and immature and unable to withstand the stress and harassment that he was forced to endure. 

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

That on 6 October 1987, he enlisted in the Regular Army for 4 years at age 23.  He served in military occupational specialty (MOS) 94B (Food Service Specialist).

The applicant received no nonjudicial punishments, or court-martial convictions.  However, between March and May 1988, he was counseled numerous times for his poor attitude, for inadequate performance, for threatening to do bodily harm to himself to get out of the Army, for being disrespectful towards and for disobeying a directive from a noncommissioned officer (NCO) and for threatening to poison food in the dining facility.  He needed constant supervision to accomplish the simplest of tasks. 

On 19 April 1988, the applicant received a mental status evaluation.  On 27 April 1988, he received a medical examination.  He was determined to be both mentally and physically fit for any administrative action deemed appropriate.

On 19 May 1988, the applicant’s commander notified him that he was being recommended for discharge under the provisions of Chapter 14, Army Regulation (AR) 635-200, for misconduct -- commission of a serious offense, with an GD.  The commander cited the reason for his recommendation to be the applicant’s threat to kill the command sergeant major whom he blamed for not discharging him from the Army. 

On 19 May 1988, the applicant acknowledged notification and was advised by legal counsel of the basis for the contemplated action, its potential effects, and the rights available to him.  He authenticated a document with his own signature in which he acknowledged that he understood the ramifications of receiving a GD.  He was not entitled to a personal appearance before an administrative separation board.  The available records do not contain a statement written by the applicant in his own behalf.

On 23 May 1988, competent authority approved the recommendation and directed the issuance of a GD for misconduct-commission of a serious offense under the provisions of Chapter 14, AR 635-200.

On 1 June 1988, the applicant was separated with a GD.  He had completed 7 months, and 26 days of active military service.  On 9 April 1998, the Department of Veterans Affairs (DVA) determined that the applicant’s service connected back condition was 40% disabling.  

Evidence of record indicates that on 23 June 1999, the Army Discharge Review Board denied the applicant's request for upgrade of his discharge.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter l4 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, convictions 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 or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may also be awarded.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

DISCUSSION:  Considering all 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 Board noted that the command continuously counseled the applicant for
his conduct and performance.  He was afforded a reasonable opportunity to conform to the required standards of discipline and performance.  He also received legal counsel prior to his administrative separation.  He was separated when the command determined that he did not demonstrate the potential for further military service.  
3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 

4.	Further, the applicant met entrance qualification standards to include age. 
There is no evidence to show that he was any less mature than other soldiers of the same age that successfully completed their service obligation.

5.  The applicant received a medical/physical evaluation just days prior to his discharge. There is no evidence of any back condition which rendered him medically unfit for retention or that justified physical disability processing.  The applicant has provided no probative medical evidence to the contrary.

6.  The fact that the DVA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

7.	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

EJO____  JDM_____  JMA____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027427	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000105	
TYPE OF DISCHARGE	(GD)	
DATE OF DISCHARGE	19880601	
DISCHARGE AUTHORITY	AR 635-200, Chapter 14 	
DISCHARGE REASON	A67.30	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY	Director	
ISSUES         1.	144.6730	
2.		
3.		
4.		
5.		
6.